of  California 
Regional 
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UNIVERSITY  OF  CALIFORNIA 
AT    LOS  ANGELES 


'^^, 


■i\it 


GIFT  OF 

Dr.    Charles   0.    Haines 


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Social  Science  ZcxUBoolis 

Edited  by  RICHARD  T.  ELY 


COMPARATIVE  FREE  GOVERNMENT 


SOCIAL  SCIENCE   TEXT-BOOKS 


OUTLINES    OF    ECONOMICS 

By  KiciiAKn  T.  Ely,  Ph.D.,  LL.D.  Revised  and 
enlarged  by  the  Author  and  Thomas  S.  Adams, 
Ph.D.,  Max  O.  Lore.nz,  Ph.D.,  Ai.i.y.v  A. 
Young,  Ph.D. 

HISTORY   OF    ECONOMIC   THOUGHT 
By  Lkwis  H.   Hanky,  Ph.D. 

BUSINESS  ORGANIZATION   AND   COMBINATION 
By  Lewls  H.  Haney. 

PROBLEMS    OF   CHILD    WELFARE 
By  George  B.  Mangold,  Ph.D. 

THE   NEW    AMERICAN   GOVERNMENT 
By  James  T.  Young. 

OUTLINES    OF   SOCIOLOGY 

By   Frank    W.    Bla^kmar,    Ph.D.,   and    John    Lkwi.s 

Gii.i.iN,  pii.n. 

COMPARATIVE    FREE   (lOVERNMENT 
By  JE.S.SE  Macy  and  John  W.  Gannawav. 

AMERICAN    MUNK  IPAL   I'KOGRESS 
By  Charlks  Ziiiimn. 


COMPARATIVE    FREE 
GOVERNMENT 


BY 

JESSE   MACY 

PROFESSOR   EMERITUS  OF   POLITICAI>   SCIENCE 
IN   GRINNELL    COLLEGE 

AND 

JOHN   W.   GANNAWAY 

PROFESSOR  OK   POLITICAL   SCIENCE 
IN   GRINNELL   COLLEGE 


THE   MACMILLAN   COMPANY 
1915 

All  rights  reserved 


Copyright,  191 5, 
Ry   the   MACMILLAN   CoMTANY. 


Set  u()  and  electroty}>e<]       Published  December,  1915. 


Kattooot)  Qrrti 

J.  H.  CudhltiK  <•..         r.rrulrk  .V  f^inlth  C 
Norwmxl,  Miiix.,  I'  S.A. 


J  h :)  I 


PREFACE 

With  the  advent  of  a  world  movement  toward  democracy  has 
come  a  comparative  study  of  government.    Already  a  large  body 
of  literature,  based  on  such  study,  has  appeared.     The  fact  is 
gaining  recognition  that  to  understand  clearly  the  problems  of 
democracy,  and  to  solve  them  adequately,  world  experience  with 
—  free  institutions  must  be  drawn  upon.     Democracy  is  not  the 
^  exclusive  possession  of  any  people  ;  nor  is  it  dependent  upon 
■,  any  particular  form  or  method.     Every  nation,  whether  it  is  far 
^  advanced  on  the  path  of  freedom  or  is  only  beginning  the  slow 
^journey  toward  liberty,  has  its  lesson  for  the  whole  world.     It  is 
of  high  value  to  have  the  important  contributions  of  the  various 
^states  analyzed  and  compared  for  the  purpose  of  throwing  light 
upon  the  problems  and  processes  of  free  government.     No  na- 
tion is  so  far  advanced  that  it  cannot  learn  from  the  experience 
of  others. 

The  comparative  study  of  government  is  particularly  valuable 
(^  for  the  student  just  beginning  his  work  in  Political  Science.     It 
not  only  brings  knowledge  of  fundamental  principles,  but  gives 
breadth  of  view  and  develops  sympathetic  appreciation  of  what 
peoples  of  other  races  and  nationalities  are  doing  to  meet  the 
demands  of  modern  society.     It  is  the  most  effective  safeguard 
against  the  narrow,  intolerant  provincialism  and  the  cheap  chau- 
Vji!>^inism  which  characterize  the  attitude  of  so  many  persons  and 
which  are  so  great  an  obstacle  in  the  path  of  genuine  political 
progress.     The  authors  of  this  book  are  firm  in  the  belief  that 
the  basic  course  in  Political  Science  should  be  comparative  in 
nature.     It  is  a  profound  pity  that  so  many  men  and  women  en- 
ter upon  the  duties  of  citizenship  in  complete  ignorance  of  what 
^  the  nations  of  the  world  are  doing  to  achieve  self-government. 
X^      A  word  concerning  the  plan  and  purpose  of  the  chapters  that 
X  follow  should  be  given.     The  purpose  is  not  primarily  a  com- 
\>,   parative  study  of  existing  governments,  but  a  study  of  the  vari- 
^  ous  processes  and  institutions  by  which  free  government  is  being 
,  iy^attained.     In  this  is  found  one  of  the  book's  distinctive  features. 
3^The  aim  is  not  to  give  a  mass  of  detail  concerning  each  of  the 

V 


vi  PREFACE 

governments  considered,  but  to  treat  of  the  rise  and  present 
status  of  democracy  by  means  of  the  most  important  contributing 
types,  emphasizing  those  aspects  which  throw  light  on  the  main 
theme.  In  this  way  the  student  is  made  acquainted  with  the 
essential  features  of  the  world's  free  governments  as  they  are 
now  constituted. 

Since  all  governments  are  manifestly  affected  by  the  struggle 
for  freedom,  none  can  be  omitted  from  the  final  comparison. 
Vet  as  an  introduction  to  the  study  some  governments  are  clearly 
more  important  than  others  and  may  be  used  to  illustrate  the 
political  organizations  of  the  less  conspicuous  members  of  their 
own  class.  In  this  respect  the  United  States  holds  first  place 
because  it  was  the  first  great  state  distinctly  founded  upon  the 
theory  of  jxjpular  control,  and  because  of  its  influence,  both 
direct  and  indirect,  upon  all  other  states.  It  forms,  especially 
for  the  American  student,  a  natural  basis  for  a  comparative 
study  of  government  throughout  the  world.  The  institutions  of 
the  United  States  are  therefore  described  with  considerable  de- 
tail, fully  half  of  the  book  being  devoted  to  their  consideration. 
This  part  is  not  primarily  comparative,  but  descriptive. 

A  knowledge  of  free  government  in  America  involves  an  under- 
standing of  the  rise  of  democracy  in  England  ;  and  therefore 
England,  for  distinctively  comparative  study,  holds  the  next 
place.  The  United  States  is  itself  a  product  of  England.  To- 
gether the  two  great  Anglo-Saxon  states  furnish  the  two  leading 
types  of  free  government,  —  the  Presidential  and  the  Cabinet. 
The  one  has  been  copied  with  many  variations  by  the  Republics 
of  the  New  V\'orld  and  the  other  by  the  states  in  which  free 
governments  have  developed  out  of  monarchies.  The  treatment 
of  the  English  government  is  not  intended  to  be  exhaustive, 
but  is  suflicienlly  full  to  show  England's  great  contributions  to 
democracy  and  to  make  clear  the  important  contrasts  between 
English  practices  and  those  of  other  states. 

With  ec)ual  definiteness  the  third  place  is  assigned  to  Erance, 
whose  relation  trj  Anglo-Saxon  history  has  been  intimate  and 
significant.  I-'rance,  unlike  I'".ngland  and  thi-  United  States,  is 
developing  a  democracy  under  the  normal  condition  of  close 
proximity  to  rival  states.  Moreover,  the  Erench  democracy  is 
c:onspicuous  because  of  the  high  centralization  that  prevails.  It 
involves  a  governmental  (organization  that  differs  fundamentally 


PREFACE  vii 

from  those  of  England  and  America.  Furthermore,  it  is  through 
France  that  modern  free  governments  are  most  notably  linked 
to  the  ancient  Roman  Republic  through  the  system  of  Roman 
law.  French  experience,  therefore,  is  of  peculiar  interest  and 
value  in  the  comparative  study  of  political  institutions. 

Germany  and  Switzerland  are  selected  for  study  because  the 
one  government  exhibits  the  early  stages  of  transition  from 
autocracy  to  democracy  and  the  other  an  advanced  stage  of 
assured  democracy.  Switzerland  is  also  of  especial  interest 
because  it  furnishes  a  type  of  free  government  which  is  neither 
Cabinet  nor  Presidential,  yet  is  completely  democratic.  The 
comparison  is  still  further  extended  by  chapters  on  the  small 
states  of  Europe  and  the  leading  states  of  South  America,  and 
a  final  chapter  on  the  relation  of  federation  to  democracy. 

In  the  treatment  of  the  various  governments  special  attention 
is  given  to  the  federal  system  as  an  agency  of  free  government ; 
to  the  development  and  position  of  the  executive  authority ;  to 
political  parties  as  a  universal  phenomenon  in  the  transition 
from  despotism  to  democracy;  and  to  the  judiciary  because  of 
its  close  relation  to  partisan  politics  in  America  and  to  the  con- 
flict between  autocracy  and  democracy  in  all  the  great  states. 
The  judiciary  is  of  peculiar  interest,  also,  because  of  the  two 
competing  systems  of  English  and  Roman  law,  involving  dis- 
tinctly different  governmental  organizations  and  different  means 
of  access  to  the  people  as  the  source  of  authority. 

In  the  preparation  of  the  book  the  authors  have  incurred 
many  obligations.  They  are  especially  indebted  to  Professor 
Ely,  Editor  of  the  Series,  who  read  the  entire  manuscript  and 
made  many  helpful  suggestions.  They  are  also  under  obliga- 
tion to  Professors  F.  A.  Ogg,  of  the  University  of  Wisconsin, 
and  P.  F.  Peck  and  C.  E.  Payne,  of  Grinnell  College,  who  read 
parts  of  the  manuscript  and  gave  valuable  assistance  through 
both  suggestions  and  corrections.  A  part  of  the  manuscript  on 
England  was  read  by  Sir  Frederick  Pollock.  Numerous  friends 
in  the  various  states  described  have  been  most  helpful  in  sup- 
plying material  for  the  book.  Of  these  special  mention  should 
be  made  of  Professeur  C.  Cestre,  of  the  University  of  Bordeaux, 
and  Professeur  Emile  Saillens,  of  the  University  of  Toulouse. 

Grinnet.l,  Iowa, 

October  20,  1915. 


TABLE    OF   CONTENTS 


Introduction.     The  Nature  of  Free  Government    . 


PACK 

xiii 


PART   I 


THE   UNITED    STATES   OF   AMERICA 

CHAPTER 

1.  The  States  and  the  Nation      .... 

II.  Sources  of  the  Constitution    .... 

III.  Principles  of  the  Constitution 

IV.  The  Presidency 

V.  The  Election  of  the  President 

VI.  The  President  as  an  Executive 

VII.  The  President  and  Legislation 

VIII.  The  President's  Cabinet 

IX.  National  Administration 

X.  The  Congress  —  General  Observations   . 

XI.  The  Senate 

XII.  The    House    of    Representatives  —  Composition 

Organization 

XIII.  The     House    of     Representatives  —  Committees 

Procedure        

XIV.  The  Party  System 

XV.     The  National  Convention         .... 

XVI.     Party  Machinery  and  Methods  —  National  . 

ix 


3 

14 
22 
31 
38 
55 
70 
81 
96 
116 
127 

145 

158 
177 
190 
205 


TABLE  OF   CONTENTS 


CHAPTER 
XVII. 

XVIII. 


XIX. 
XX. 

XXI. 

XXII. 

XX II  I. 

XXIV. 
XXV. 

X.WI. 

XXVI  I. 

XX  VI II. 

XXIX. 


r.\KTY  Machinery  .\m)  Methods —  Siate  and  Local    219 
The     Federal    Court.s  —  Constitutional    Status 

and  Development 

The  Federal  Courts — Present  Organization 
Jurisdiction  ok  the  Federal  Courts 

The  Courts  and  Legislation 

Constitutional  Readjustment  hy  Amendment 
Constitutional     Readjustment     through     Law, 

Custom,  and  Judicial  Construction 
The  States —  Constitutional  Position  and  Powers  307 
Thk  States  —  Siikrage  and  Citizenship  .  .  319 
The   States  —  Police    Power   and   Control   ovir 

IxiCAL  Governments 329 

State  Legislation 340 

Siate  Ad.ministkaiion 361 

The  State  Judiciary 379 


231 
241 
250 
266 
281 

295 


PART    11 


ENGLAND 


XXX.     Thk  Cahim-i   Svsikm 

XXXI.  Nature  ok  the  English  Constitution 

XXXII.  Sources  ok  the  English  Constitution   koun 

1x)cal  Government       .... 

XXX I II.  iiiK  Rise  ok  the  Cahinet  .... 

XXX  1\'.  Thk  Relation  ok  the  Caiiinet  io  ihk  E.xkc 

AND     IO     IHK    Jl  DICIARV    .... 

XXXV.  Thk  JIousk  ok  Co.mmons      .... 

XXXVI.      TiiK  IloisK  OK  Lords 

XXXVIi.  'i'liK  .Minis!  KV  i.n   I'aki.iamkm 

XXXVIII.     TiiK  Crown 

XXXIX.  TlIK    ()RI«;iN    OK    I'AKTIKS 

XL.  Tin.  Parties  in   I'nri.iamknt 

Xi.I.  !>>'  Al.    I'AKIV    Old.ANI/.ATION 


.  395 

.  403 

.  412 

.  421 

K 

.  435 

.  447 

,  459 

,  466 

.  478 

.  491 

.  498 

.  505 


TABLE  OF   CONTENTS  xi 


CHAPTER 


PAGE 


XLII.     Religion  and  the  Church 516 

XLIII.     The  Courts  and  Local  Government  ....  523 

XLIV.    Wales,  Scotland,  and  Ireland 533 

XLV.    The  Self-governing  Dominions 540 

FRANCE 

XLVI.     Origin  and  Nature  of  the  French  Constitution   .  550 

XLVII.     The  Executive  in  France 562 

XLVIII.     The  Legislature  and  Political  Parties    .        .        .  572 

XLIX.     The  Roman  Legal  System  and  Modern  Government  582 

GERMANY 

L.     The  Origin  of  the  German  Empire    ....  592 

LI.     The  Present  Constitution  and  Government    .        .  602 

SWITZERLAND 

LII.     Origin  of  the  Swiss  Government       ....  614 

LIII.     The  Frame  of  Government 621 

LIV.     The  Working  of  the  System 632 

LV.     Switzerland    Compared   with   the   United    States 

and  England 639 

PART   III 
DEMOCRACY   IN   OTHER   STATES 

LVI.     The  Small  States  of  Europe 649 

LVII.     South  America  and  Free  Government      .        .        .  656 
LVIII.     Cabinet  and  Unitary  Government  in  Chile    .        .  663 
LIX.     Federal  and  Presidential  Government  in  Argen- 
tina       672 

LX.     Federation  and  Democracy 689 

BOOK   LIST 701 

CASES    IN   AMERICAN   CONSTITUTIONAL   LAW         .         .  719 

INDEX 725 


INTRODUCTION 

The  Nature  of  Free  Government 

Aristotle  and  Plato  in  their  descriptions  of  the  ideal  city- 
state  elaborated  principles  which  are  being  incarnated  in  modern 
free  states.  In  such  a  state  the  citizen  realized  himself  through 
his  conscious  participation  in  the  life  of  the  city.  There  could 
be  no  conflict  between  the  man  and  the  state  because  man  was 
a  political  animal  and  he  became  a  man  by  participation  in  the 
body  politic.  There  could  be  no  perfect  man  until  the  body 
politic  was  perfected.  Perfection  in  the  city  implied  perfection 
in  the  citizenship.  Education  and  training  were  the  chief  means 
for  making  known  to  each  member  his  place  in  the  service  of 
the  city.  Aristotle  described  two  sorts  of  government,  one  of 
which  was  in  harmony  with  the  true  interests  of  the  state,  while 
the  other  introduced  an  alien  element  which  tended  to  destroy 
the  state.  The  officers  in  the  good  government  retained  their 
place  as  conscious  members  of  the  body  politic.  They  sought 
in  all  ways  to  serve  the  state;  they  were  the  willing  agents  for 
the  self-expression  of  the  cit)' ;  they  had  no  will  of  their  own 
apart  from  the  interests  of  the  city.  These  were  the  character- 
istics of  the  true  government.  The  bad  government  was  one 
in  which  the  rulers  separated  themselves  from  the  normal  life 
of  the  citizen.  They  made  use  of  office  for  self-aggrandisement. 
They  relied  upon  force  in  matters  of  government  and  thus  in- 
troduced a  state  of  war  between  the  city  and  its  rulers.  The 
triumph  of  a  bad  government  meant  the  destruction  of  the  body 
politic  and  the  substitution  of  a  state  composed  of  rulers  and 
their  subjects,  in  which  the  rulers  command  and  the  subjects 
are  forced  to  obey. 

Each  of  these  two  kinds  of  government  might  have  any  one 
of  three  forms,  —  monarchy,  aristocracy,  or  polity  for  the  good; 
tyranny,  oligarchy,  or  democracy  for  the  bad.     The  form,  ac- 


XIV  INTRODUCTION 

cording  to  Aristotle,  was  of  minor  importance  as  compared  with 
the  fundamental  question  whether  the  government  was  in  har- 
mony with  the  life  of  the  city  or  was  imposed  upon  the  city 
by  force.' 

In  his  view,  the  body  poUtic  inckided  only  a  small  fraction 
of  the  people,  while  some  nine  tenths  of  them  were  consigned 
to  perpetual  slavery,  and  were  entirely  subject  to  the  will  of 
their  masters.  Where  slavery  prevailed  in  the  household  it  was 
natural  that  the  relation  of  master  to  slave  should  be  carried 
into  that  of  rulers  to  subjects  in  the  state,  rulers  commanding 
and  subjects  obeying.  Whether  the  rulers  were  one,  few,  or 
many,  the  tendency  was  to  force  their  will  upon  the  city,  and 
in  practice  every  form  of  government  became  bad.  The  citizens 
became  divided  into  rulers  and  subjects  and  the  true  ideal  of 
the  cit)'  vanished.  That  which  the  Greeks  described  as  a  de- 
generate government  became  the  accepted  definition  of  all 
government.*  Not  until  the  abolition  of  slavery  in  very  recent 
times  has  it  been  possible  to  revert  to  the  Greek  conception 
of  a  good  government.  A  citizenship  composed  of  those  who 
believe  in  slavery  will  naturally  have  a  government  which  is 
imposed  by  force  upon  the  masses  of  the  people.  The  dis- 
appearance of  slavery  clears  the  field  for  a  real  body  politic 
composed  of  the  entire  people.  It  becomes  possible  for  the 
first  time  in  human  history  to  fulfill  the  Greek  ideal  of  a  state 
whose  rulers  are  at  the  same  time  subjects  of  the  jieojile. 

The  new  order  recjuires  a  new  literature,  the  use  of  new  words 
and  phrases,  or,  what  is  more  difficult,  the  use  of  old  words  with 
different  and  often  contradictory  meanings.  For  instance,  the 
term  "  government  "  in  the  modern  state  is  coming  to  involve  a  flat 
contradiction  of  its  former  u.sage.  In  the  literature  of  the  past, 
the  term,  in  its  various  uses,  carries  with  it  tlie  idea  of  com- 
pulsion, the  forcing  of  men  to  do  things  which  they  do  not  wish 
to  do.'  It  implies  a  separation  of  the  people  into  two  classes, 
rulers  and  subjects,  self-government  being  a  contradiction  in 
terms.  The  new  order  in  a  free  state  reverses  the  former  rela- 
tion of  officers  and  p<^-ople.  The  oflu  ers.  as  the  servants  of 
the  people,  have  no  authority  not  conftrrtd   upon  ihcm  by  the 

'  Aristotle's  "Politics,"  Bcx.k  HI 
» I  hid..  Bwic  I. 

»  Austin,  "  lA-cturcs  on  Jurispnidintc,  the  Pliilov)phy  of  Positive  Law,"  Part 
I.  I  I,  Lecture  VI,  p.  III. 


INTRODUCTION  XV 

people.  In  an  ideal  democracy  neither  officers  nor  people 
would  be  under  command,  but  the  good  government  described 
by  Aristotle  would  be  realized.  Officers,  in  common  with  all 
citizens,  would  be  servants  of  the  state,  all  working  to  a  common 
end,  government  being  the  chief  agency  for  the  self-realization 
of  the  citizens. 

The  word  "  Democracy  "  has  had  a  most  remarkable  history. 
Aristotle's  three  terms  to  designate  the  forms  of  good  government 
were  "  Monarchy,"  "  Aristocracy,"  and  "  Polity  "  ;  Democracy 
does  not  appear  in  the  list.  The  Monarch  became  a  tyrant  when 
he  ceased  to  rule  as  a  servant  of  the  body  politic.  The  Aristocracy 
became  an  oligarchy  or  a  plutocracy  when  public  officers  ceased 
to  be  servants  of  the  city  and  entered  into  a  conspiracy  for  its 
destruction.  The  Polity  is  in  itself  an  ideal  government  in 
which  the  entire  citizenship  has  become  so  trained  that  each 
man  finds  his  place  in  the  service  of  the  city  by  mutual  agree- 
ment. The  degenerate  Polity  becomes  a  "  democracy,"  a  gov- 
ernment by  violence  and  brute  force  directed  by  demagogues,  — 
in  all  respects  a  bad  government.  Yet  this  same  word,  used 
by  Aristotle  to  designate  a  vitiated  government,  which  never 
had  any  support  or  approval,  is  now  taken  up  and  applied  to 
every  movement  in  modern  society  which  tends  to  fulfill  the 
Greek  ideal  of  a  polity,  or  a  form  of  government  suited  to  the 
perfect  state.  Democracy  now  includes  all  that  Aristotle  de- 
scribes in  his  three  forms  of  good  government.  In  place  of  the 
autocrat  it  would  substitute  the  democratic  monarch,  a  willing 
servant  of  the  people,  as  has  been  done  in  Norway.  Oligarchs 
and  plutocrats  who  have  been  in  conspiracy  against  the  people 
give  place  to  families  who  have  won  reputation  for  superior 
service,  as  is  the  case  in  some  of  the  Swiss  communes  and 
cantons.  The  ideal  democracy,  as  the  term  is  now  used,  is  a 
state  in  which  all  are  equally  bound  to  render  service  and  all 
freely  observe  the  rules  of  the  service,  the  necessity  for  the  use 
of  force  being  a  mark  of  failure  in  government.  This  ideal  is 
not  confined  to  institutions  of  the  state ;  it  is  carried  into  the 
industrial  world  where  it  would  abolish  industrial  wars  and 
establish  agreement  among  all  industrial  classes.  It  pervades 
schools  and  churches,  where  it  is  working  a  revolution  no  less 
significant.     Every  form  of  association  is  being  democratized. 

Between  the  extreme  and  contradictory  definitions  of  the  term 


Xvi  INTRODUCTION 

political  literature  furnishes  illustration  of  numerous  interme- 
diate uses.'  Democracy  is  often  described  as  government  by 
majorities.  As  thus  used  the  word  denotes  a  mere  form  of  gov- 
ernment without  any  implication  as  to  whether  it  is  good  or 
bad.  Such  a  definition  is  natural  to  those  who  define  all  gov- 
ernment in  terms  of  force.  Majorities  compel  minorities  to 
obey.  The  modern  democrat,  while  maintaining  the  ideal  of 
government  by  common  agreement,  admits  that  majorities  are 
of  immense  use  in  the  transition  from  despotism  to  true  democ- 
racv.  It  is  better  to  have  free  and  fair  discussion  of  the  few 
issues  in  which  common  consent  cannot  be  otherwise  reached 
and  then  to  accept  for  the  time  a  majority  vote,  than  to  adopt 
the  old  method  of  force.  As  one  has  said :  "  It  is  better  to 
count  heads  than  to  break  heads."  But  the  ideal  democracy 
is  not  a  government  by  majorities,  it  is  a  government  by  com- 
mon consent  in  which  majorities  serve  as  one  of  the  means  for 
reaching  agreement. 

The  transition  from  government  imposed  by  the  strong  upon 
the  weak  to  government  achieved  by  the  willing  cooperation  of 
citizens  involves  a  great  revolution.  That  revolution  is  yet  in 
its  early  beginnings.  Democracy  will  not  have  had  a  fair  trial 
until  its  principles  have  become  generally  understood  and  ac- 
cepted. It  calls  for  a  new  type  of  statesman,  a  new  standard 
for  the  superior  man.  The  old  order  called  for  the  man  who 
could  break  the  wills  of  the  multitude  and  render  them  submis- 
sive. The  new  order  calls  for  the  man  of  insight,  of  sympathy 
and  discernment,  who  perceives  most  clearly  the  needs  and 
aspirations  of  the  people.  It  will  require  many  generations 
fairly  to  test  the  merits  of  the  new  order. 

The  new  era  involves  a  new  interpretation  of  history.  So 
long  as  the  relation  of  master  and  slave  served  as  a  model  for 
the  organization  of  the  state  it  was  impossible  to  gain  a  hearing 
for  the  tea(  hings  of  the  Greek  jjhilosophers  on  the  real  nature 
of  the  true  state.  That  teaching  lay  dormant  for  two  thousand 
years.  The  contradictory  interpretations  of  llebnw  history  are 
likewise  significant.  The  divine  right  of  kings  and  every  other 
form  of  (lespf)tism  have  been  upheld  by  appeals  to  Jewish  and 

•  Ari-^totlr  an<\  oihrr  (;rr<k  wrilrrs  K-nvc  .1  v.irirty  «'f  mcininK-*  to  the  term. 
"Wh.1t  AriMollc  (all.n  ToXirr/a  (ix.liiy)  Polyhion  tnlls  iv>^Kparta  (dcrnocr.-icy) ; 
what  Arintollc  (.ills  irfnoxfMrla  I'ulytjio.'*  tall»  dx^^oKparla."  —  I'rccman,  "  Growth 
o(  the  Englub  Con»lilulion,"  p.  1O7,  London,  1884. 


INTRODUCTION  Xvii 

early  Christian  literature.  Effective  use  is  now  made  of  the 
same  literature  in  support  of  the  modern  free  state.  The  free 
state  calls  for  no  new  principles ;  all  needful  principles  are 
clearly  stated  in  Greek  and  Hebrew  and  other  ancient  literature  ; 
the  application  alone  is  new.  As  the  upholders  of  the  former 
order  have  sought  to  monopolize  the  interpretation  of  history, 
advocates  of  free  government  are  now  disposed  to  be  equally 
monopolistic.  No  past  human  experience  is  foreign  to  their 
needs ;  the  entire  course  of  evolution  is  interpreted  as  contribu- 
tory to  the  one  end  of  producing  the  free  man  in  a  congenial 
environment.  Slavery  and  despotism  have  themselves  been 
cardinal  agencies  in  making  men  free.  They  have  compelled 
their  victims  to  combine  for  self-protection  and  thus  to  gain 
experience  for  the  future  democracy.  The  revolution  now  in 
progress  arises  from  the  conviction  that  all  human  beings  may 
become  free  without  the  use  of  the  brutal  agencies  of  the  past. 

Western  civilization  has  always  meant  a  freer  civilization. 
Innumerable  communities  have  been  organized  during  the  mi- 
grations of  races  westward,  each  of  them  a  new  experiment  in 
government.  The  movement  falls  into  two  divisions.  For  many 
centuries  after  the  nations  had  crossed  the  Eastern  continents 
the  Atlantic  Ocean  served  as  a  barrier  to  their  further  progress. 
Then  free  communities  were  organized  on  its  western  shore 
and  the  migration  went  on  across  another  great  continent. 

Modern  democracy  is  thus  rooted  and  grounded  in  the  past. 
Its  teachers  have  been  states  rather  than  individuals.  All  states 
contribute,  but  some  much  more  than  others.  In  the  Old  World 
the  great  contributors  have  been  Palestine,  Greece,  Rome, 
France,  and  England ;  in  the  New  the  United  States.  Free 
states  assume  innumerable  forms  and  modifications,  but  a  few 
leading  types  serve  as  a  basis  for  classification.  It  is  customary 
to  classify  nearly  all  free  governments  as  of  Cabinet  form  after 
the  English  model  or  of  Presidential  form  after  the  model  of  the 
United  States.  Cabinet  governments  appear  in  the  states  in 
which  free  governments  have  been  derived  from  monarchy,  and 
are  mainly  confined  to  the  Old  World,  while  the  United  States 
is  accepted  as  a  model  for  the  organization  of  American  Repub- 
lics. The  Old  World  form  is  the  result  of  evolution  ;  the  New 
World  form  is  characterized  by  artificial  construction. 

Another  classification  is  based  upon   principles   even   more 


X\iii  IXTRODUCTION 

fundamental.  Except  in  the  United  States  and  in  the  British 
Empire  free  governments  are  founded  upon  the  principles  of 
law  and  government  developed  by  the  Roman  Republic  and 
perfected  by  the  Roman  Empire.  The  Roman  system  involves 
radical  diflferences  in  the  allotment  of  powers  to  the  legislature 
and  to  the  executive,  and  a  still  greater  distinction  in  the  place 
assigned  to  the  judiciary.  France  holds  a  leading  place  in 
the  adaptation  of  the  Roman  system  to  the  needs  of  modern 
democracy. 


PART    I 
THE    UNITED    STATES 


COMPARATIVE   FREE 
GOVERNMENT 

CHAPTER  I 

The  States  and  the  Nation 

The  term  "  free  government  "  implies  no  particular  form 
of  government.  Such  a  government  may  be  of  the  unitary 
type  and  be  a  monarchy,  as  in  England,  or  a  republic,  as  in 
France.  It  may  be  of  the  federated  type  and  be  republican, 
as  in  the  United  States,  or  monarchic,  as  in  the  German  Em- 
pire. It  may  be  presidential  in  form  or  of  the  cabinet  t3^e. 
It  is  not  the  form  that  makes  a  government  free,  but  the  fact 
that  it  is  dependent  upon  the  people  whom  it  governs.  A 
free  government  is  a  popular  government,  and  any  govern- 
ment that  is  based  upon  the  will  of  the  people  and  is  controlled 
by  that  will  is  to  be  classed  as  free. 

The  United  States  has  a  government  whose  powers  are 
divided  between  the  Nation  and  the  States.  But  it  is  a  gov- 
ernment of  the  federal  type  and  not  a  mere  confederation. 
There  is  a  vital  difference,  as  the  history  of  the  United  States 
has  revealed.  A  confederation  involves  a  union  of  independent, 
sovereign  states  for  some  common  purpose.  Sovereignty  con- 
tinues in  each  of  the  states.  The  union  is  essentially  temporary 
in  its  nature,  a  kind  of  treaty  alliance,  and  each  state  is  free 
to  withdraw  at  any  time  it  chooses.  Federal  government  im- 
plies a  union  of  states  or  commonwealths  to  form  a  single 
state  whose  governmental  authority  is  divided  between  a  central 
organization  and  the  various  commonwealth  organizations. 
Sovereignty  resides  in  the  state  as  a  whole  and  not  in  the  com- 
monwealths that  compose  it.  Each  of  the  component  units 
is  an  integral  part  of  the  larger  state  and  cannot  withdraw 

3 


4  C0MPAR.\T1\E   FREE   GOVERNMExNT 

from  it.  Each  of  the  commonwealths  has  its  own  government 
which  exercises  full  control  over  its  own  local  affairs.  It  is 
independent  of  all  the  other  commonwealths  and  to  a  large 
extent  independent  of  the  central  authority,  but  not  entirely 
so,  as  in  the  case  of  a  confederation.  The  central  government 
cannot  interfere  with  the  commonwealth  in  its  own  sphere 
and  the  commonwealth  cannot  interfere  with  the  central  gov- 
ernment. The  authority  has  been  divided  between  them  and 
each  is  supposed  to  go  its  own  way  in  regard  to  the  matters 
that  have  been  assigned  to  it. 

Federation  Inevitable  in  the  United  States.  -  Political  and 
economic  conditions  existing  at  the  time  the  Constitution  of 
the  United  States  was  framed  determined  the  form  of  govern- 
ment that  was  to  be  csta])lished.  A  federal  government  was 
not  only  logical  but  inevitable.  A  unitary  government  was 
impossible.  The  agencies  of  the  central  government  under 
the  Articles  of  Confederation  were  powerless  and  the  Confedera- 
tion was  a  failure.  Each  of  the  thirteen  States  was  a  law  unto 
itself  and  could  obey  or  ignore  the  commands  of  the  Congress 
as  it  pleased.  To  remedy  the  weaknesses  of  the  Confederation 
the  new  government  must  possess  wide  powers,  must  be  supreme, 
indeed,  with  respect  to  a  good  many  things,  but,  under  the  con- 
ditions that  j)revailed,  no  constitution  could  be  adopted  which 
did  not  recognize  the  equality  of  the  Slates  and  their  independ- 
ence of  one  another  and,  to  a  large  extent,  of  the  central  govern- 
ment itself. 

The  principle  of  federalism  alone  could  meet  the  requirements. 
The  States,  though  united  by  a  common  interest  in  the  i)rosecu- 
tion  of  the  war  against  England,  were  jealous  and  suspicious  of 
one  another  after  their  independence  had  been  gained.  Their 
commercial  and  industrial  interests  were  in  conllict.  and  dis- 
trust |)revailed  on  every  side.  Particularly  were  the  small 
S  ites  distrustful  of  the  large  States  and  fearful  lest  their  rights 
and  equality  might  be  destroyed  under  the  new  government 
through  the  latter's  pre|)onflerating  influence.  Moreover,  the 
predominant  sentiment  in  all  of  the  States  was  opposed  to  any 
unnecessjiry  ccntrali/alion  of  power.  It  was  recognized  that 
there  must  be  some  centralization,  but  this  should  be  held  to 
the  lowest  limit  possible  and  still  give  the  (ciitral  government 
sufTicicnt  power  to  do  its  work  effectively.     \  government  of  a 


THE    STATES    AND   THE   NATION  5 

unitary  character,  therefore,  or  one  based  upon  the  monarchic 
principle,  was  out  of  the  question.  It  was  to  free  themselves 
from  this  principle  that  the  people  had  fought  and  suffered, 
and  the  liberties  thus  gained  must  not  be  endangered  by  setting 
up  a  new  master  which  might  in  time  become  as  objectionable 
as  the  old  one  had  been. 

The  real  problem  confronting  the  framers  of  the  Constitu- 
tion, therefore,  was  not  that  of  determining  the  form  of  govern- 
ment ;  that  was  settled  by  the  very  conditions  which  gave  rise 
to  the  need  for  a  new  government.  Their  great  problem  was 
the  extremely  difficult  one  of  setting  up  a  federal  government 
in  which  there  should  be  a  proper  balance  of  powers  between 
the  States  and  the  central  government.  The  futile,  even 
farcical  attempts  of  the  Congress  to  control  matters  of  com- 
mon interest  under  the  Articles  of  Confederation  made  it  plain 
that  the  new  central  government  must  be  strong;  but  not  too 
strong.  All  possible  danger  of  a  monarchy  must  be  averted. 
On  the  other  hand,  the  States  must  retain  all  of  the  power  that 
was  necessary  for  the  protection  of  their  own  independence 
and  rights  and  for  the  solution  of  their  own  local  problems ; 
but  not  too  much  power  should  be  retained.  The  weakness 
and  the  inefficiency  of  the  old  Confederation  must  be  avoided. 
But  how  should  this  nice  balancing  of  functions  and  powers 
be  brought  about?  Just  how  much  power  should  be  retained 
by  the  States  and  how  much  should  be  given  to  the  central 
government?  In  what  sphere  of  activity  should  the  latter 
be  supreme  and  in  what  the  former?  Exactly  what  limitations 
should  be  imposed  upon  each?  Just  how  should  the  adjust- 
ment of  powers  be  made?  This  was  the  problem  which  faced 
the  men  of  the  constitutional  convention.  Its  right  solution 
demanded  the  most  consummate  statecraft ;  and  it  is  not  to  the 
discredit  of  the  men  who  framed  the  Constitution  that  their 
work  was  deficient  in  some  respects.  A  perfect  adjustment  of 
the  relations  between  the  States  and  the  central  government 
was  impossible. 

This  problem  would  not  have  been  so  difficult  had  the  States 
not  existed  as  independent  commonwealths,  each  with  its 
own  fully  developed  government.  If  the  task  had  been  merely  to 
create  a  new  government  of  a  unitary  type,  or  even  of  a  federal 
type,  parceling  out  the  powers   between  the  States    and  the 


6  COMPARATI\-K    FREE    GOVERNMENT 

Nation,  it  would  have  been  much  more  simple.  The  Constitution 
would  then  have  been  the  source  of  all  powers  for  States  and 
Nation  alike,  and  it  would  not  have  been  impossible  to  dis- 
tribute these  powers  in  such  a  way  as  to  eliminate  all  cause 
of  friction  and  discord.  But  such  was  not  the  case.  The 
States  existed.  In  theory,  at  least,  each  was  an  independent 
state,  possessing  all  the  powers  that  any  independent  common- 
wealth could  possess.  Practically,  of  course,  none  of  the  States 
was  able  to  maintain  its  sovereign  supremacy.  Nevertheless, 
all  jealously  and  insistently  asserted  their  independence,  and  the 
practical  difficulty  of  placing  over  them  an  effective  central 
authority  was  one  of  vast  proportions.  This  could  be  done  only 
by  inducing  the  States  to  surrender  certain  definite  powers  to 
the  Nation  and  to  impose  certain  definite  restrictions  upon 
themselves.     Without  the  latter  the  former  would  be  worthless. 

Distribution  of  Powers.  —  It  should  be  clear  that  the  central 
government  is  one  of  conferred  or  limited  powers.  These  are 
sometimes  spoken  of  as  enumerated  powers.  The  Nation  can 
exercise  only  those  powers  that  are  specifically  delegated  to  it 
by  the  Constitution  or  are  necessarily  implied  either  by  the 
definite  grants  or  by  the  Constitution  as  a  whole.  Obviously 
the  grant  of  power  to  do  a  certain  thing  carries  with  it  the 
power  to  provide  the  necessary  means  to  make  that  power 
elTective.'  The  definite  recognition  of  the  doctrine  of  implied 
powers  was  made  by  the  Supreme  Court  early  in  the  national 
history.  The  central  government  can  do  nothing  that  it  is 
not  permitted  to  do  by  the  Constitution,  either  directly  or  by 
implication.  Over  the  powers  that  have  been  granted  to  it, 
however,  its  control  is  absolute. 

The  States,  on  the  other  hand,  arc  not  governments  with 
conferred  or  delegated  powers,  but  with  reserved  or  inherent 
powers.  All  powers  belong  to  the  States  which  have  not  been 
specifically  denied  to  them  by  the  Constitution  or  granted  to  the 
central  government.  In  the  case  of  the  central  government 
it  must  be  shown  afTirmalivcly  that  a  power  has  been  granted, 
either  expressly  or  impliedly,  before  its  exercise  can  be  valid. 

'  "Let  thcr  rn<l  l)C  legitimate,  let  it  he  within  the  scope  of  the  <onslituli()n,  .ind 
all  mcon.H  whii  h  are  a|)|)r()pri;ile,  which  are  plainly  iidapte'l  to  that  end,  which 
arc  not  prohil)i(c<l,  hut  consist  with  the  letter  and  spirit  of  the  constitution,  are 
conilitutional."  —  AtiCuiloch  v.  Maryland,  4  Whcalon  31O  (i8iq). 


THE   STATES   AND   THE   NATION  7 

In  the  case  of  the  States  the  denial  of  the  power  must  be  affirm- 
atively shown  before  its  exercise  can  be  considered  invalid. 
The  States  were  antecedent  to  the  Nation  and  originally  pos- 
sessed all  power. 

The  principle  which  controlled  in  the  distribution  of  powers 
was  a  simple  one.  Questions  that  were  national  in  their  scope 
or  that  affected  more  than  one  of  the  States  were  placed  under 
the  control  of  the  central  authority.  The  control  of  questions 
that  were  local  or  intrastate  in  their  character  was  left  to  the 
States.  Expressed  in  this  general  way  the  principle  which  guided 
the  Constitution  makers  is  simple  and  easily  understood ;  but 
in  the  actual  practice  of  determining  what  is  intrastate  and  what 
interstate  in  its  reach,  difficulties  of  the  most  intricate  nature  are 
frequently  -encountered.  The  great  crises  of  the  Nation's 
history,  indeed,  have  centered  around  the  question  of  whether 
certain  powers  had  been  granted  to  the  Nation  or  reserved  to 
the  States. 

According  to  the  division  of  powers  effected  there  was  lodged 
in  the  federal  government  control  over  foreign  relations,  inter- 
state and  foreign  commerce,  questions  of  war  and  peace,  army 
and  navy,  post  office,  coinage,  currency,  and  other  matters  that 
are  of  concern  to  all  of  the  States.  The  taxing  power,  of  course, 
was  given  to  the  central  government,  for  without  that  it  would 
be  as  helpless  as  the  Congress  had  been  under  the  Articles  of 
Confederation. 

The  States  retained  control  over  all  local  questions  and  insti- 
tutions, education,  the  care  of  the  poor,  private  law,  both  civil 
and  criminal.  They  possess  "  all  the  ordinary  legal  choices 
that  shape  a  people's  life.  Theirs  is  the  whole  of  the  ordinary 
field  of  law;  the  regulation  of  domestic  relations  and  of  the 
relations  between  employer  and  employee,  the  determination  of 
property  rights  and  of  the  validity  and  enforcement  of  contracts, 
the  definition  of  crimes  and  their  punishment,  the  definition  of 
the  many  and  subtle  rights  and  obligations  which  lie  outside 
the  fields  of  property  and  contract,  the  establishment  of  the  laws 
of  incorporation  and  of  the  rules  governing  the  conduct  of  every 
kind  of  business."  ^  It  is  plain  that  the  great  bulk  of  govern- 
mental activity  rests  with  the  States.     The  central  government 

1  Wilson,  "  Constitutional  Government  in  the  United  States,"  p.  183. 


8  coMPARArni:  krkI':  government 

may  do  comparatively  few  things,  whereas  the  States  may  exer- 
cise authority  in  a  multitude  of  things. 

In  the  case  of  both  Nation  and  States  a  number  of  definite 
prohibitions  were  established  by  the  Constitution.  These  are 
contained  for  the  most  part  in  sections  9  and  10  of  Article  I 
and  in  the  first  ten  amendments  to  the  Constitution,  known  as 
the  Bill  of  Rights.  By  these  provisions  Congress  and  the 
States  alike  are  prohibited  from  passing  bills  of  attainder  or 
ex  post  facto  laws,  from  suspending  the  writ  of  habeas  corpus, 
and  from  granting  titles  of  nobility.  Congress  is  also  forbidden 
to  place  duties  upon  articles  exported  from  the  States  or  by  its 
regulation  of  commerce  give  preference  to  any  State ;  it  cannot 
pass  laws  restricting  freedom  of  religion  or  of  speech  or  of  the 
press  or  of  public  meeting ;  it  cannot  deny  trial  by  jury  or  estab- 
lish a  religious  test  for  the  holding  of  j^ublic  office. 

The  States,  in  turn,  arc  forbidden  to  enter  into  any  treaty  or 
alliance,  coin  money,  make  anything  but  gold  and  silver  coin 
a  legal  tender,  or  pass  any  law  impairing  the  obligation  of  con- 
tracts. No  State  can,  without  the  consent  of  Congress,  levy 
any  imjjort  or  export  duties  or  enter  into  any  compact  with 
another  State  or  with  a  foreign  nation.  No  State  shall  main- 
tain any  but  a  republican  form  of  government,  or  abridge  the 
[)rivilcges  or  immunities  of  citizens  of  the  United  States,  or 
deprive  any  i)erson  of  life,  liberty,  or  property  without  due  pro- 
cess of  law,  or  deny  to  any  person  the  ef|ual  protection  of  the 
laws.  In  the  case  of  both  States  and  Nation  other  restrictions 
are  im[)osed,  in  addition  to  those  mentioned. 

With  regard  to  a  number  of  subjects  there  is  a  concurrent 
jurisdiction.  Bankruptcy,  for  instance,  is  a  subject  upon  which 
both  the  States  and  the  Nation  may  legislate.  The  rule  govern- 
ing this  point,  as  determined  by  the  courts,  is  to  the  elTect  that 
the  States  may  exercise  concurrent  power  in  all  cases  with  the 
exce[)tion  of  three;  first,  where  the  power  is  lodged  exclu.sively 
in  the  federal  Constitution;  second,  where  it  is  given  to  the 
United  States  and  prohii)ited  to  the  States;  and,  iliird,  where 
from  the  very  nature  and  subjects  of  the  power,  it  must  neces- 
sarily be  exrlusively  exerriserl  i)y  the  United  States  govern- 
ment.' 

'  Gilman  v,  /'ltili'trlf<ht  i,  j  W.ill.u  c  715  l\y,h(>);  Slurnes  v.  CrownittshirU,  4 
Whcaton  122  (1819). 


THE   STATES   AND   THE   NATION  9 

In  case  of  conflict  between  the  law  of  a  State  and  the  law  of 
the  Nation  upon  any  subject  over  which  there  is  concurrent 
power,  the  law  of  the  State  must  give  way.  Of  course  if  Congress 
does  not  pass  any  law  at  all,  the  States  are  free  to  act  as  they 
please.  Most  important  of  these  concurrent  powers  is  the 
taxing  power,  for  neither  the  Nation  nor  the  States  could  survive 
without  the  power  to  raise  revenue. 

It  is  obvious  that  although  the  principle  upon  which  the  divi- 
sion of  powers  was  based  is  simple,  the  actual  division  was  not 
absolute,  that  there  is  a  good  deal  of  overlapping  of  the  two 
authorities,  and  that  friction  can  easily  arise.  This  has  occurred, 
indeed,  again  and  again.  There  is  not  and  cannot  well  be  an 
exact  delimitation  of  authority.  Moreover,  the  new  economic 
and  poHtical  problems  that  result  from  constantly  changing 
industrial  and  economic  conditions  make  it  inevitable  that 
conflicts  shall  continue  to  arise  from  time  to  time.  As  the 
relations  of  Hfe  become  more  complex  the  difficulty  of  determin- 
ing exactly  what  belongs  to  the  States  and  what  to  the  Nation 
becomes  greater.  Particularly  troublesome  in  this  connection 
have  been  the  questions  of  industry  and  commerce.  Authority 
claimed  and  in  various  ways  exercised  by  the  Nation  over  inter- 
state commerce  has  repeatedly  been  denied  by  the  States.  And 
notwithstanding  all  of  the  controversies  that  have  arisen  since 
the  Constitution  was  adopted,  the  precise  amount  of  powxr 
which  the  Nation  has  is  still  unknown.  There  can  be  no  doubt 
that  the  tendency  has  been  for  it  to  exercise  more  and  more 
control.  The  relation  existing  at  present  between  the  States 
and  the  Nation  is  by  no  means  what  it  was  at  the  beginning. 
There  has  been  beyond  question  a  shifting  of  powers  from  the 
States  to  the  national  authority.  Centralization  has  taken 
place  far  beyond  the  thought  of  the  framers  of  the  Constitution. 
To  what  extent  this  centralizing  process  should  continue  is 
one  of  the  great  and  apparently  abiding  problems  before  the 
American  people. 

Growth  of  National  Power.  —  Centralization  was  feared  by 
many  of  the  men  who  helped  to  frame  the  Constitution  and  every 
effort  was  made  to  protect  the  rights  and  powers  of  the  States. 
One  group  in  the  convention  favored  a  strongly  centralized 
government  even  at  the  expense  of  the  States;  another  group 
sought  to  hold  the  power  of  the  central  government  to  the 


lO  COMPARATIVE   FREE    GOVERNMENT 

lowest  limit  possible.  The  former  emphasized  national  interests 
and  the  latter  local  and  State  interests.  These  two  views  later 
were  championed  by  the  political  parties  that  first  sprang  into 
existence  after  the  adoption  of  the  Constitution,  the  Federalist 
party,  under  the  lead  of  Alexander  Hamilton,  standing  for  the 
power  of  the  Nation,  and  the  Democratic-Republican  party, 
under  the  lead  of  Thomas  Jefferson,  standing  for  the  powers  and 
rights  of  the  States.  There  has  been  incessant  dispute  over  the 
Une  of  separation  of  the  two  authorities  ever  since,  and  the  end 
is  not  yet. 

One  of  the  first  instances  of  the  denial  of  federal  authority 
on  the  part  of  the  States  was  in  connection  with  the  estabUsh- 
ment  of  the  second  United  States  Bank  in  1816.  Two  years 
later  Maryland  imposed  a  tax  upon  the  circulating  notes  issued 
by  the  branches  of  the  bank  and  circulating  within  the  limits  of 
that  State.  The  famous  case  of  McCulloch  v.  IMaryland  was 
the  result.'  Maryland  denied  the  power  of  Congress  to  establish 
the  bank  because  there  was  no  express  grant  of  power  for  that 
purpose.  Chief  Justice  Marshall  held,  however,  speaking  for 
the  Supreme  Court,  that  the  bank  was  constitutional  notwith- 
standing the  absence  of  a  specific  grant  of  power,  and  so  definitely 
established  the  principle  of  implied  powers.  By  this  decision 
the  national  power  was  greatly  strengthened. 

The  Nullification  Act  of  South  Carolina  in  1832  brought  on  a 
real  crisis  over  the  rights  of  the  States  as  against  the  rights  of 
the  Nation.  Congress  had  passed  a  tariff  law  to  which  a  nimil)er 
of  the  States  objected.  South  Carolina  through  a  convention 
passed  an  ordinance  of  nullification  and  thus  defied  the  national 
authority.  But  under  the  vigorous  leadership  of  President 
Jackson,  Congress  adhered  to  its  policy  and  nullification  failed. 
Again  the  supremacy  of  the  federal  government  was  maintained 
in  the  face  of  bitter  opposition  by  the  States,  and  a  "  critical 
matter,  of  lasting  importance,  was  decided.  The  federal  gov- 
ernment was  conceded  the  power  to  determine  the  economic 
opportunities  of  the  States."  '" 

But  the  climax  of  the  struggle  over  States'  rights  was  reached 
in  the  great  Civil  War  which  grew  out  of  the  long  and  bitter 
slavery  controversy.     Whatever  may  have  been  the  constitu- 

'  4  Whcaton  ^(^  (iSuj). 

*  Wilson,  "  Constitutional  Government  in  the  I'nitcd  States,  "  p.  175. 


THE   STATES   AND   THE   NATION  II 

tional  right  of  Congress  with  respect  to  slavery  in  the  Territories 
or  the  constitutional  right  of  a  State  to  secede,  the  outcome  of 
the  struggle  was  the  absolute  supremacy  of  the  Union.  By  the 
arbitrament  of  war  the  relation  of  the  States  to  the  Union,  as 
far  as  secession  is  concerned,  was  settled  for  all  time.  The 
United  States  is  not  merely  a  confederation. 

The  controversies  that  have  arisen  since  the  Civil  War  and 
the  reconstruction  period  have  centered  about  the  control  of 
commerce  and  the  great  corporations.  A  new  industrial  order, 
involving  vast  economic  interests  and  tremendously  difficult 
problems,  has  developed  which  was  not  and  could  not  be  fore- 
seen when  the  Constitution  was  adopted.  The  control  of  com- 
merce among  the  States,  which  was  given  to  the  national  gov- 
ernment by  the  Constitution,  was  a  simple  thing  at  the  beginning. 
It  involved  no  great  centralization  of  power  in  the  Nation. 
But  the  rapid  and  unforeseen  development  of  industry,  the 
growth  of  great  railway  systems  and  huge  industrial  corporations 
doing  business  in  all  of  the  States  of  the  Union  have  transformed 
the  Ufe  of  America  and  have,  under  the  interstate  commerce 
clause  of  the  Constitution,  brought  about  a  vast  centralization  of 
power  in  the  national  government.  The  States  have  not  kept 
pace  with  the  Nation  in  this  development  and  more  and  more 
the  people  look  to  the  central  government  for  protection  and 
relief  from  corporate  and  monopohstic  oppression.  In  the 
changed  and  changing  attitude  of  the  people  there  is  perhaps 
grave  danger  for  the  States.  It  is  possible  that  the  readjust- 
ment which  seems  inevitable  may  involve  some  kind  of  reorgani- 
zation of  the  State  governments  and  a  renewed  activity  and 
control  on  their  part  in  the  field  of  corporate  industry,  but  the 
trend  for  years  has  been  decidedly  in  the  other  direction,  and  the 
outcome  seems  certain  to  be  another  recognition  of  the  suprem- 
acy of  the  national  authority  concerning  vital  pubhc  problems 
which  are  now  the  subject  of  dispute.  The  tendency  from  the 
beginning  has  been  toward  a  larger  and  more  effective  national 
control.  It  is  not  unreasonable  to  assume  that  the  centralizing 
process  will  continue. 

Supreme  Court's  Control  over  Division  of  Powers.  —  It  is 
important  to  note  that  the  ultimate  authority  to  determine 
whether  a  question  comes  within  the  power  of  the  States  or  of 
the  Nation  rests  with  the  national  government.     It  is  the  Su- 


12  COMPARATIVE    FREE   GOVERNMENT 

premc  Court  of  the  United  States  that  interprets  the  Constitu- 
tion, and  by  constitutional  interpretation  the  powers  of  the 
Nation  may  be  extended  far  beyond  their  present  limits.  Ex- 
perience has  shown  repeatedly  that  this  may  be  done.  The 
Constitution  is  constantly  being  altered  by  the  interpretation 
process.  Some  changes  have  been  accomplished  by  the  formal 
process  of  amendment,  but  many  of  the  most  significant  modi- 
fications have  been  brought  about  through  judicial  construction. 
The  fame  of  Chief  Justice  Marshall  largely  rests  upon  decisions 
which  contributed  to  the  development  of  the  national  authority. 
There  is  no  reason  to  think  that  changes  in  the  meaning  of  the 
Constitution  by  this  method  will  cease  ;  indeed,  such  changes  arc 
necessary  in  order  that  the  Constitution  may  be  adapted  to  new 
needs  and  new  problems.  It  may  well  be  expected,  if  past  and 
present  tendencies  are  indicative  of  future  development,  that  the 
Nation  will  acquire  by  the  interpretative  process  a  larger  control 
than  it  now  has,  unless  the  people  place  an  arbitrary  limit  upon 
its  powers  by  the  formal  amendment  of  the  Constitution. 

Some  friction  between  the  States  and  the  national  govern- 
ment was  unavoidable.  The  framers  of  the  Constitution  en- 
deavored to  reduce  the  chance  of  conflict  to  the  lowest  limit 
possible,  but  its  entire  elimination  was  not  to  be  expected. 
On  the  whole,  the  complex  g()\ernmenlal  machine  has  worked 
with  wonderful  smoothness.  The  student  may  well  wonder 
why  more  friction  has  not  occurred.  The  explanation,  in  large 
part,  is  found  in  one  very  important  fact.  The  central  govern- 
ment is  not  dependent  upon  the  States  as  such  for  the  jwwers 
it  exercises  or  for  the  accomplishment  of  its  purposes.  It  acts 
directly  upon  the  people.  It  has  its  own  governmental  machin- 
ery which  is  entirely  separate  from  the  governments  of  the 
States.  Its  laws  arc  passed  and  enforced  by  its  own  agents. 
It  |)erf()rms  its  functions  as  if  the  States  did  not  exist.  In  its 
own  sphere  of  action  it  is  sui>reme.' 

The  Stales,  on  the  other  hand,  arc  beyond  the  (ontrol  of  the 
N'alion  in  the  exercise  of  the  powers  that  belong  to  them.  As 
long  as  they  keep  within  the  limits  set  by  the  federal  Constitu- 
tion they  are  free  to  act  as  they  phase.  The  national  authority 
can  in  no  way  interfere.     Each  State  may  go  its  own  way  as 

'  For  .1  radically  diflcrcnl  (lolicy  sec  chapters  which  follow  on  Germany  and 
Switzerland. 


THE  STATES   AND  THE   NATION  1 3 

long  as  it  does  not  violate  the  fundamental  law  as  contained  in 
the  Constitution.  This  freedom  from  dependence  upon  each 
other  in  the  discharge  of  the  functions  which  each  must  perform 
accounts  in  large  measure  for  the  orderliness  and  smoothness 
with  which  the  whole  complex  system  has  worked.  The  citizen 
owes  allegiance  to  both  governments,  but  this  double  allegiance 
involves  no  practical  conflict  of  duty. 

REFERENCES 

Beard.  American  Government  and  Politics,  Edition  1914,  Chaps.  IH,  VIII. 
Bryce.     Tlie  American  Commonwealth,  Edition  1910,  Vol.    I,  Chaps.  II, 

XXVII,  XXVIII. 
WiLLOUGHBY.     The  American  Constitutional  System,  Chaps.  I,  II,  VII,  VIII. 
Wilson.     Constitutional  Government  in  the  United  States,  Chap.  VII. 
WooDBURN.     The  American  Republic,  Chap.  II. 


CHAPTER   II 

Sources  of  the  Constitution 

The  Conslilution  of  the  Liiited  Stales  is  the  product  of  both 
evolution  and  conscious  effort.  It  is  not  the  invention  of  the 
men  who  composed  the  Constitutional  Convention  of  1787, 
although  some  of  its  features  were  worked  out  b\-  them  without 
experience  as  their  guide.  In  most  of  its  essentials,  however, 
it  is  the  result  of  experience  and  not  of  theory,  as  is  true  of  nearly 
all  of  the  important,  vital  political  institutions  of  the  world.  Its 
roots  are  in  the  past  and  an  adequate  comprehension  of  its 
principles  and  of  the  scheme  of  government  which  it  established 
cannot  be  obtained  without  an  understanding  of  the  essential 
facts  in  the  previous  history  of  the  States  and  the  Colonics. 
It  is  a  mistaken  view  which  holds  that  it  was  cut  out  of  whole 
cloth,  so  to  speak,  by  the  convention  that  framed  it.  Clad- 
stone's  famous  assertion  that  it  is  "  the  most  wonderful  work 
ever  struck  off  at  a  given  time  by  the  brain  and  i)urpose  of  man," 
though  in  a  sense  true,  is  f|uite  as  noteworthy  for  the  false 
understanding  it  is  likely  to  cause  as  for  the  unstinted  admiration 
it  expresses. 

Nevertheless,  the  Constitution  is  not  an  unconscious  growth 
like  the  unwritten  Constitution  of  England.  As  it  stood  at  the 
beginning  it  was,  in  an  important  sense,  the  result  of  <lelil)irale 
effort,  of  conscious  analysis.  Some  of  its  features,  particularly 
the  melhofl  of  choosing  a  President,  were  essentially  the  inven- 
tions of  the  men  who  framed  it.  'ilic  materials  of  which  it  is 
made,  however,  the  princijjles  whit  h  il  iiiibodics,  even  the  lorm 
of  government  whiih  il  outlines,  were  furnisiicd  and  deterniined 
by  the  experience  of  the  colonists  and  tlie  economic  and  |)olitical 
conditions  that  lerl  to  its  adoption.  Its  framers  took  these 
materials  and  princi|)les  and  shaped  them  to  their  puri)osc.  It 
is  this  conscious  act  ion  of  the  people  through  their  representatives 
and  the  sanction  which  they  gave  to  the  Consliluiion  ihrough 

14 


SOURCES   OF    THE   CONSTITUTION  15 

the  process  of  ratification,  that  differentiates  it  so  fundamentally 
from  the  Constitution  of  England.  The  latter  was  never 
framed  or  adopted,  but  is  entirely  the  product  of  English  political 
history  and  experience.  This  fundamental  fact  must  never  be 
lost  sight  of  in  the  comparative  study  of  the  political  life  and 
institutions  of  the  two  countries.  It  is  one  of  those  basic 
things,  to  overlook  which  means  confusion  and  inadequate 
understanding. 

Colonial  Experience.  —  What  were  the  materials  that  were 
at  hand  with  which  to  build  the  new  government?  First  of  all 
there  was  the  experience  of  the  colonists  with  their  colonial 
governments.  The  people  had  chief  executives  in  the  form  of 
governors.  They  had  legislatures  for  the  enactment  of  laws  and 
courts  for  their  interpretation.  They  were  familiar  with  the 
processes  and  principles  of  representative  government.  They 
were  devoted  to  political  liberty.  In  short,  the  people  had 
worked  out,  and  in  the  school  of  experience  had  learned  how  to 
use,  the  basic  principles  of  the  Constitution. 

In  its  broad  outlines  the  form  of  government  that  prevailed  in 
the  different  Colonies  was  similar  to  that  which  was  established 
by  the  federal  Constitution.  There  were  the  three  departments 
of  government,  —  legislative,  executive,  and  judicial,  more  or 
less  definitely  separated  in  their  functions.  The  executive 
authority  was  largely  in  the  hands  of  the  governor  who  attended 
to  the  enforcement  of  the  laws,  made  appointments  to  ofiice, 
granted  pardons,  commanded  the  military  forces,  recommended 
legislation  to  the  assembly,  exercised  the  veto  power,  and  per- 
formed many  other  functions  similar  to  those  conferred  upon  the 
President  by  the  Constitution.  In  the  colonial  governor  and 
the  governor  of  the  States  after  independence  from  Great  Britain 
was  declared,  the  Constitution  makers  found  the  prototype  of 
the  President  and  in  the  creation  of  the  presidency,  were  guided 
by  the  experience  which  the  people  had  had  with  these  colonial 
and  State  executives. 

The  legislatures  in  all  of  the  Colonies  except  Pennsylvania 
were  composed  of  two  houses.  The  upper  house,  usually 
called  a  council,  was  an  appointive  body  e.xcept  in  Massachu- 
setts, Rhode  Island,  and  Connecticut.  It  took  part  in  all  legis- 
lative matters  along  with  the  assembly,  but  in  addition  had 
certain  executive  and  judicial  duties  as  well.     In  this  combining 


l6  COMPARATIVE    FRF.K    COVERNMKXT 

of  the  diflerent  functions  of  government  the  colonial  council 
was  not  unlike  the  Senate  provided  for  in  the  Constitution,  so 
that  the  positions  of  the  council  and  the  Senate  in  their  respective 
governments  are  not  dissimilar.  In  each  Colony,  also,  there 
was  an  assembly  which  was  elective.  This  body  was  an  impor- 
tant part  of  the  colonial  legislature  and  in  its  manner  of  selection 
suggests  the  House  of  Representatives  under  the  Constitution. 
The  assemblies  usually  had  broad  legislative  powers  and  re- 
peatedly claimed  exclusive  rights  over  certain  functions  of  pri- 
mary importance  like  that  of  taxation.  The  colonial  legislature 
as  a  whole  was  suggestive  of  a  form  of  organization  fi)r  the 
national  congress. 

In  each  of  the  Colonies  there  was  a  system  of  courts.  The 
lowest  courts  were  the  justice  courts,  ruled  over  by  justices  of  the 
peace.  Next  above  these  were  usually  county  courts  that  had 
a  wider  jurisdiction  and  exercised  larger  powers  than  the  justice 
courts.  At  the  head  of  the  system  in  each  Colony  there  was  a 
high  or  supreme  court  that  settled  the  most  inij^ortant  con- 
troversies and  heard  ai)peals  from  the  lower  courts.  Above 
these,  of  course,  was  the  Privy  Council  in  England  to  which 
appeals  in  some  instances  might  be  taken.  So  there  was  in  the 
Colonies  a  series  or  gradation  of  courts  which  contained  a  definite 
suggestion  for  a  system  of  courts  in  the  Nation.  The  analogy 
between  these  colonial  institutions  and  those  provided  for  in 
the  federal  Constitution  must  not  be  carried  too  far;  but  it  is 
[)lain  that  in  setting  up  the  three  great  departments  of  the  fed- 
eral government  the  framers  of  the  Constitution  had  a  definite 
body  of  experience,  in  which  they  had  tluir  own  personal  share 
and  to  which  they  could  look  for  guidance  in  their  action. 

Individual  and  Collective  Experience  of  the  States.  —  The 
colonial  rx|)(ricii( c  with  the-  ditTinnt  <lr|>art nicnts  of  govern- 
ment was  merged  in  that  of  the  States  after  their  indiju-ndeMce 
was  declared.  Some  of  the  States  went  right  on  with  little  or 
no  change  in  their  governmental  organizations.  Of  course 
there  was  a  great  deal  of  confusion  in  setting  u|)  the  new  Stale 
goverimients  to  take  the  place  of  the  old  colonial  organizations; 
that  was  inevitable.  Most  of  the  States  ado|)ted  new  constitu- 
tions, but  the  outlines  of  the  governments  thus  .set  up  were 
essentially  the  same  as  under  the  colonial  charters.  Connecticut 
and  Rhode  Island  <lid  not  even  I'md  it  necessary  to  change  ilieir 


SOURCES   OF   THE   CONSTITUTION  17 

charters  at  all,  but  simply  renounced  their  allegiance  to  the 
English  authority  and  went  on  with  their  accustomed  agencies 
of  government.  The  experience  of  the  States,  then,  is  to  be 
taken  simply  as  a  continuation  of  that  of  the  Colonies  and  in 
this  combined  experience  is  found  the  chief  source  of  the  federal 
Constitution.  The  men  who  framed  that  document  had  shared 
in  this  experience  and  had  contributed  to  it.  So  in  organizing 
the  new  federal  government  they  drew  upon  their  personal 
knowledge  of  institutions  which  they  had  helped  to  operate  in 
the  Colonies  and  in  the  States. 

In  addition  to  the  experience  of  the  States  considered  sep- 
arately, as  a  factor  in  determining  the  form  and  powers  of  the 
central  government  under  the  Constitution,  is  that  of  the  States 
collectively  under  the  Articles  of  Confederation.  This  was 
largely  negative  in  its  influence.  It  revealed  clearly  what  the 
new  government  ought  not  to  be.  Reference  has  already  been 
made  to  the  jealousies  and  conflicts  among  the  States  and  to 
the  weakness  of  the  Congress  under  the  Confederation.  Prac- 
tically the  power  of  Congress  amounted  simply  to  the  power 
to  advise  or  request  the  States  to  act  in  accord  with  its  plans. 
They  could  grant  or  refuse  the  request  as  they  pleased.  Con- 
gress could  not  deal  with  the  people  of  the  States  directly  and  so 
compel  obedience  to  its  commands ;  it  could  deal  only  with  the 
States  as  such  and  had  no  power  whatever  to  force  them  to  do 
its  will.  Congress  could  not  even  force  the  levy  and  collection  of 
taxes  with  which  to  meet  the  necessary  expenses  of  government. 
The  States  v/ere  sovereign.  The  Congress  was  without  au- 
thority. The  government  of  the  Confederation  was  a  failure  and 
every  passing  day  made  it  more  and  more  plain  that  if  peace  was 
to  continue  and  trade  and  commerce  thrive,  there  must  be  an 
effectual  readjustment  of  the  powers  of  the  central  govern- 
ment.^ 

It  was  this  weakness  on  the  part  of  the  Congress  and  the 
increasing  hostility  among  the  States  that  led  directly  to  the 
calling  of  the  constitutional  convention  of  1787.  Particularly 
was  it  felt  that  the  commercial  relations  of  the  States  would 
have  to  be  harmonized  and  controlled  by  some  effective  central 

'  For  a  good  brief  statement  of  the  defects  of  the  government  under  the  Articles 
of  Confederation,  see  article  by  Professor  Max  Farrand  in  The  American  Political 
Sciciue  Review,  Vol.  2,  p.  532. 
c 


l8  C(»MrAK.\TT\K    1  RKi:    GONERNMENT 

authority.  Several  ineffeclual  attempts  had  been  made  before 
1787  to  accom|)lish  this  result.  The  last  ellort  of  this  kind,  im- 
mediately preceding  the  convention  of  1787,  was  made  by  a 
convention  which  met  at  Annapolis  in  1786.  All  of  the  States 
had  been  asked  to  send  delegates,  but  only  five  responded. 
The  object  of  the  convention  was  to  seek  a  remedy  for  the  com- 
mercial troubles  of  the  States,  and  to  consider  particularly  the 
question  of  import  duties.  Realizing  its  own  helplessness,  the 
convention  voted  to  recommend  to  Congress  the  calling  of  an- 
other convention  which  should  meet  in  Philadelf)hia  the  next 
year  to  revise  the  Articles  of  Confederation  in  such  a  way  as 
would,  when  adopted  by  the  States,  "  render  the  Federal  Consti- 
tution adequate  to  the  exigencies  of  government  and  the  pres- 
ervation of  the  Union."  Congress  acted  upon  the  recommenda- 
tion and  called  the  convention  which  framed  the  present  federal 
Constitution. 

This  convention,  which  assembled  in  Philadelphia  on  the 
14th  of  May,  1787,  recognizing  the  futility  of  attempting  to 
rejjair  the  broken-down  governmental  machine  of  the  Confedera- 
tion, ignored  the  instructions  of  the  Congress  to  revise  the 
Articles  and  framed  an  entirely  new  constitution.  So  the 
immediate  cause  of  the-  framing  and  adoption  of  the  present 
federal  Constitution  was  the  wretched  weakness  and  inefllciency 
of  the  ('(jnfcfleration.  The  Articles  provided  for  neither  a 
central  executive  nor  a  central  judiciary,  and  Congress,  as  has 
already  been  said,  was  helpless  as  against  the  States.  This 
failure  of  the  Confederation,  with  its  disastrous  effects  upon  the 
relations  of  the  States,  particularly  their  commercial  relations, 
had  a  j)rofound  influence  upon  the  work  t)f  the  convention  of 
1787.  The  men  of  that  convention  had  before  their  minds  an 
object  lesson  of  what  the  new  government  ought  not  lo  be. 
I'his  object  lesson  had  a  positive  as  well  as  a  negative  influence, 
however.  It  made  the  fact  |)erfeclly  plain  thai  the  new  ii-ntral 
government  must  be  one  of  real  powers  and  that  it  must  be  free 
from  dependence  upon  the  Stales  in  the  discharge  of  its  fund  ions. 
Its  iM>wers  must  be  its  own  and  rest  upon  a  foundation  that 
could  not  be  fjueslioned  or  overthrown  by  the  States.  There 
can  be  no  doubt  thai  in  this  cnllective  experience  of  the  States 
under  the  Confederation,  .so  di.saslrous  in  its  consequences,  is 
found  one  of  the  chief  sources  of  the  fe<leral  Constitution. 


SOURCES   OF  THE   CONSTITUTION  19 

English  Institutions  and  the  Common  Law.  —  Although  the 
influences  already  described  were  the  chief  ones  in  determining 
the  fundamentals  of  the  new  Constitution,  there  were  others 
of  considerable  importance  which  should  be  noted.  The  Eng- 
lish Parliament,  while  by  no  means  a  model  for  the  federal 
Congress,  was  without  doubt  before  the  minds  of  the  men  who 
drafted  the  Constitution.  There  were  many  things  about  the 
English  Constitution,  as  it  then  was,  that  appealed  strongly  to 
the  men  of  the  convention  and  to  the  people  of  the  States  gen- 
erally, for  after  all  they  were  true  Englishmen,  devoted,  as  were 
the  people  of  England,  to  those  fundamental  human  rights  and 
liberties  which  are  the  basis  of  the  English  Constitution.  Those 
great  historic  guaranties  of  liberty  like  Magna  Charta  and  the 
Habeas  Corpus  Act  belonged  to  them  as  well  as  to  the  people  of 
England.  They  cherished  the  rights  that  had  been  won  through 
the  long  course  of  English  history  and  intended  to  preserve  them ; 
that  is  why  they  rebelled  against  the  oppression  of  George  the 
Third.  It  is  indisputable  that  they  admired  the  spirit  of  the 
English  Constitution  even  though  they  exaggerated  the  impor- 
tance of  its  monarchic  features.  '  The  men  in  the  constitutional 
convention  were  thoroughly  familiar  with  the  working  of  English 
political  institutions  and,  determined  as  they  were  to  avoid  the 
risks  and  dangers  of  monarchy,  it  is  certain  that  they  were 
influenced  in  their  work  by  the  underlying  principles  of  the  Con- 
stitution upon  which  those  institutions  were  based. 

Likewise  the  English  Common  Law  was  an  important  factor. 
This  system  of  law  had  been  transplanted  to  America  when  the 
Colonies  were  first  established  and  in  it  were  grounded  those 
fundamental  rights  which  the  people  sought  to  preserve.  Its 
influence  upon  the  men  who  drafted  the  Constitution  is  clearly 
discernible.  One  principle  of  the  Common  Law  in  particular 
is  basic  in  the  Constitution.  It  is  the  principle,  as  Bryce 
points  out,  "  that  an  act  done  by  any  official  person  or  law-mak- 
ing body  beyond  his  or  its  legal  competence  is  simply  void." 
By  the  application  of  this  principle  the  framers  of  the  Constitu- 
tion were  able  to  divide  rather  definitely  the  powers  of  govern- 
ment between  the  States  and  the  central  government,  and  to 
separate  the  powers  of  the  three  great  departments  of  the  central 
government  as  established  by  the  Constitution.  As  Bryce  puts 
it,  they  had  in  this  principle  "  a  key  to  the  difficulties  involved 


20  COMPAR.VIUK    1  REi:    ClOVERXMEXT 

in  the  eslahlishmenl  of  a  variety  of  authorities  not  suborcHnatc 
to  one  another,  but  each  supreme  in  its  own  sphere.  The  appli- 
cation of  this  principle  made  it  possible  not  only  to  create  a 
National  government  which  should  leave  free  scope  for  the 
working  of  the  Slate  governments,  but  also  so  to  divide  the 
powers  of  the  National  government  among  various  persons  and 
bodies  as  that  none  should  absorb  or  overbear  the  others."  ' 
In  the  practical  working  of  the  entire  federal  system  this  prin- 
cii)le  has  been  of  great  value.  Upon  it  is  based  one  of  the 
fundamental  doctrines  of  the  Constitution,  the  doctrine  of 
the  separation  of  powers.  Manifestly  the  Common  Law 
must  not  be  overlooked  in  listing  the  sources  of  the  Constitu- 
tion. 

Political  Philosophy. — The  political  ])hilosoj)hy  of  certain 
se\enleenlh-  and  eiglUeenth-cenlury  writers  should  also  be  men- 
tioned as  an  influence  that  contributed  something  to  the  consti- 
tutional system  of  the  United  States.  But  this  influence  was 
slight  and  it  is  easy  to  overemphasize  its  significance.  It  must 
be  remembered  that  the  builders  of  the  Constitution  used  expe- 
rience and  not  theory  as  the  foundation  of  their  structure. 
Notable  among  the  philosophers  who  have  been  credited  with 
having  prt)foundly  influenced  political  evolution  in  .Kmerica 
are  Harrington,  Locke,  Montes(juieu,  and  Rousseau.  The 
statesmen  who  drafted  the  Constitution  were  certainly  familiar 
with  the  writings  of  these  men,  and  no  doubt  were  influenced  l)y 
them,  but  there  is  little,  if  anything,  in  the  Constitution  itself 
to  indicate  that  fact.  In  this  resjjcct  the  Constitution  is  very 
different  from  the  Declaration  of  Independence.-  In  the  latter 
there  is  abundant  evidence  of  the  influence  of  eighteenth-century 
I)hilosophy.  The  personal  views  of  the  men  who  framed  the  Ct)n- 
slitution  were  without  doubt  aflected  more  or  less  by  the  writ- 
ings of  the  philosophers  mentioned,  but  it  was  not  to  these  writ- 
ings but  to  the  i)olilical  experience  of  their  own  peo|)le  that  they 
turned  for  the  fundamental  facts  upon  which  to  erect  the  new 
gf>vernmental  organization.  It  would  be  wrong  to  say  that  these 
writers  had  no  influcnic  at  all  upon  the  result,  l)ut  that  influence 
was  very  slight  as  (oinjiared  with  the  experii-nce  of  the  colonists 

•  Bo'cc.  "  The  American  C'ommonwcallh,"  .New  ;in»l  KcvisctI  Kdilioii,  Vui.  i,  f). 
.10. 

'  Hrlow,  Ch.iii   XI.VI 


SOURCES   OF   THE    CONSTITUTION  21 

in  working  out  the  problems  of  free  government  with  their  own 
colonial  and  State  institutions. 

REFERENCES 

Beard.     American  Government  aiid  Politics,  Edition  1914,  Chaps.  I,  II. 

Beard.  Readings  in  American  Government  and  Politics,  pp.  25-34.  (The 
Articles  of  Confederation.) 

Bryce.     The  American  Commonivealth,  Edition  1910,  Vol.  I,  Chap.  III. 

Farrand.  "The  Federal  Constitution  and  the  Defects  of  the  Confedera- 
tion," The  American  Political  Science  Review,  Vol.  II,  p.  532  (Nov.,  1908). 

Hart.     Acliial  Government,  pp.  39-53. 


CHAPTER   III 

Principles  of  the  Constitution 

A  POLITICAL  constitution  may  be  defined  as  "  that  whereby 
the  instrumentalities  and  powers  of  government  are  distributed 
and  harmonized."  '  It  may  be  written  and  contained  in  a  single 
document  as  in  the  United  Slates;  or  it  may  be  written  and  be 
embodied  in  a  number  of  constitutional  acts  as  in  France ;  or 
it  may  be  unwritten,  being  made  up  of  a  number  of  customs, 
understandings,  precedents,  legislative  acts,  as  in  England.  It 
is  important,  particularly  for  the  American  student,  to  grasp  the 
full  significance  of  the  definition  given.  The  natural  tendency 
of  the  American  is  to  assume  that  a  true  constitution  must  l)e  in 
a  definite  written  form.  Nothing  could  be  farther  from  the 
truth,  for  a  living  constitution  cannot  be  confined  to  a  written 
document.  Anything,  written  or  unwritten,  that  creates  or 
establishes  the  instrumentalities  of  government  and  gives  to 
each  its  {jowers  and  harmonizes  the.se  agencies  in  the  exerci.se 
of  their  powers  is  a  constitution.  Whether  a  written  constitu- 
tion is  more  .sacred  or  more  binding  upon  the  people  than  is  an 
unwritten  constitution  depends  altogether  upon  the  people's 
state  of  mind  and  attitude  towards  it.  The  Constitution  of 
England  is  no  less  venerated  by  the  people  of  England  than  is  the 
federal  Constitution  by  the  people  of  the  United  States. 

The  statement  was  just  made  that  a  living  constitution  cannot 
be  confinefl  to  a  written  document.  This  is  a  fact  of  jjrofound 
importance  in  the  study  of  government,  f<»r  no  (ine  can  obtain 
an  aflef|uaN*  uiulerstanding  of  the  working  of  a  government  who 
confines  his  clTort  to  a  study  of  its  structure  as  outlined  in  the 
written  constitution.  The  actual  working  constitnlion  of  the 
United  States,  for  instance,  is  not  at  all  the  same  as  the  written 
Constitution  framed  by  the  convent  ion  of  17.H7.     It   has  been 

'  Mncy,  "  The  EnRJish  Constitution, "  p.  6. 
22 


PRINCIPLES   OF   THE    CONSTITUTION  23 

changed  in  many  vital  respects  by  court  interpretations,  by  cus- 
tom, and  by  the  development  of  extra-constitutional  institutions. 
Government  must  be  studied  in  operation,  as  a  "  going  concern," 
to  be  understood.  The  constitution  is  and  must  ever  be,  —  to 
use  President  Wilson's  apt  phrase  —  a  "  vehicle  of  life."  The 
functioning  of  the  organs  of  government  set  up  by  the  written 
Constitution,  as  well  as  their  structure,  must  be  comprehended 
before  one  can  lay  claim  to  anything  that  approaches  an  under- 
standing of  the  real  constitution  of  a  country.  Constitutions, 
governments,  are  living,  changing  things.  They  must  adjust 
themselves  to  the  ever  shifting  conditions  of  life  if  they  are  to 
be  truly  effective  instruments  of  political  and  social  progress. 

The  United  States  a  Federal  Republic.  —  The  constitutional 
system  of  the  United  States  is  built  upon  a  number  of  fundamen- 
tal principles,  as  contained  in  the  written  Constitution,  which  it  is 
necessary  for  the  student  to  understand. 

In  the  first  place  the  government  of  the  United  States  is  a 
republic.  The  "  fathers  "  of  the  Constitution  did  not  intend  it 
to  be  a  democracy.  They  were  determined  not  to  have  a 
monarchy ;  but  in  avoiding  the  dangers  of  monarchy  they  did 
not  intend  to  run  into  the  pitfalls  of  democracy.  However 
democratic  may  be  the  tendencies  of  the  present  day,  the  in- 
tention of  the  framsfs  of  the  Constitution  is  plain.  They  were 
not  thoroughgoing  democrats  by  any  means.  They  wanted  a 
republic  and  that  is  what  they  established.  A  republic  is  a 
government  in  which  the  power  is  exercised  by  the  people 
through  chosen  representatives.  The  people  are  the  source 
of  power,  but  they  do  not  rule  directly.  They  and  their  repre- 
sentatives alike  are  restrained  by  constitutional  provisions. 
This  was  the  only  kind  of  government  which  the  framers  of  the 
Constitution  believed  to  be  safe.  Their  view  was  well  expressed 
by  James  Madison  :  "  We  may  define  a  republic  to  be  a  govern- 
ment which  derives  all  its  power  directly  or  indirectly  from  the 
great  body  of  the  people  ;  and  is  administered  by  persons  holding 
their  offices  during  pleasure,  for  a  limited  period,  or  during  good 
behavior.  It  is  essential  to  such  a  government  that  it  be  derived 
from  the  great  body  of  the  society,  not  from  an  inconsiderable 
proportion,  or  a  favored  class  of  it.  It  is  sufficient  for  such  a 
government  that  the  persons  administering  it  be  appointed, 
either  directly  or  indirectly,  by  the  people;   and  that  they  hold 


24  co.Mi'AR.vrn  i:  free  goverxmext 

their  appointments  by  cillur  ol  the  tenures  just  specified. "' 
The  government  which  Madison  described,  and  which  he  and 
his  associates  established,  is  thus  a  republic  of  the  democratic 
type.  It  rests  upon  the  will  of  the  people,  but  the  people  can 
express  their  will  only  through  regularly  chosen  rei)rescntativcs 
who  are  subject  to  constitutional  restrictions.  In  the  course  of 
the  years  the  democratic  clement  in  the  control  of  the  govern- 
ment has  undoubtedly  become  stronger.  Particularly  in  recent 
years  has  the  movement  toward  direct  democracy  within  the 
States  made  raj^id  progress.  The  tendency  at  present  is  clearly 
in  the  direction  of  a  larger  direct  participation  of  the  people  in 
the  control  of  both  State  and  National  governments. 

Not  only  is  the  government  of  the  United  Stales  a  republic, 
but  it  is  a  federal  rejiublic.  It  is  not  a  centralized  republic  like 
France,  in  which  all  powers  are  lodged  in  the  national  authority, 
but  it  is  a  federation  of  States  in  which  the  powers  of  govern- 
ment are  divided  between  the  central  organization  and  the 
organizations  of  the  States  that  form  the  federation.  Refer- 
ence has  already  been  made  to  the  fact  that  the  federal  form 
was  determined  by  conditions.  No  other  form  was  possible 
and  no  other  was  seriously  thought  of  by  the  constitutional 
convention.  The  absolutely  underlying  principle  of  the  con- 
stitutional system  of  the  Tnited  Slates  is  the  principle  of  fed- 
eralism. The  great  contrilnition  which  the  L'nited  States  has 
made  and  is  making  to  the  political  e.xpericnce  of  the  world  is 
its  demonstration  of  the  fact  that  federalism  can  be  successful, 
both  from  the  standpoint  of  stale  autonomy  and  national 
efluiency.  It  is,  indeed,  furnishing  to  the  w»)rld  a  model,  per- 
haps the  model,  for  the  great  world  state  of  the  future. - 

Separation  of  Powers.  Probably  no  theory  of  gox-ernnn-nt 
was  more  widi-l\'  acce|)tefl  by  the  people  of  the  States  at  the 
time  the  Constitution  was  adopted  th.in  the  theory  of  the  sej)- 
ar.'ition  of  jjowers.  .\alurally,  tluii,  tliis  theory  is  one  of  the 
fundamentals  of  the  Constitution,  it  was  impossible  to  organ- 
ize the  central  government  on  an\-  otiier  basis.  '!"he  general 
belief  was  that  the  separation  of  powers  is  essential  to  liberty. 
'!  hat  inrjividual  liberty  could  be  preser\'ed  under  a  government 
in   whi(  li   the  legislative  an<l   executive  |)owers  were  lodged   in 

'  Thr  fcderaihl,  No.  39.  '  Itclow.  Chap.  LX. 


PRINCIPLES   OF   THE   CONSTITUTION  2 5 

the  same  hands  is  a  theory  of  government  which  the  constitu- 
tion makers  and  the  people  generally  did  not  believe.  It  must 
be  remembered  that  the  English  Constitution  as  it  is  to-day, 
with  its  guaranties  of  individual  liberty,  had  not  then  developed. 

The  theory  of  the  separation  of  powers  is  easily  stated. 
There  are  three  great  functions  of  government,  — ■  legislative, 
executive,  and  judicial.  The  powers  to  discharge  these  functions 
should  be  lodged  in  different  departments.  Each  department 
should  be  supreme  in  its  own  sphere  of  action.  Each  is  co- 
ordinate with  the  others  and  as  far  as  practicable  should  be 
independent  of  them.  Each,  therefore,  is  confined  in  its  work 
to  the  exercise  of  the  powers  that  have  been  specifically  given 
to  it.  If  it  steps  beyond  the  limit  set  by  the  constitution  into 
the  field  of  another  department,  its  acts  are  void.  Only  by 
separating  the  powers  of  government  in  this  way,  and  as  far 
as  possible  keeping  them  separate,  can  the  liberties  of  the 
people  be  adequately  protected.  To  keep  the  departments 
separate  each  must  be  hedged  about  with  definite  constitutional 
restrictions.  The  more  completely  this  separation  can  be 
maintained,  the  safer  will  be  the  people  in  the  enjoyment  of 
their  civil  and  political  rights. 

The  wide  acceptance  of  this  theory  is  generally  ascribed  to 
the  intluence  of  the  great  French  writer,  Montesquieu.  He 
was  by  no  means  the  first  to  differentiate  the  functions  of 
government,  but  he  expressed  the  theory  of  the  separation  of 
powers  in  its  modern  form  and  insisted  strongly  that  there  can 
be  no  liberty  if  the  legislative  and  executive  powers  are  united 
in  the  same  person.  The  judicial  power,  also,  must  be  separated 
from  the  other  two.  "  There  would  be  an  end  of  everything," 
Montesquieu  says,  if  the  same  person  or  the  same  body  were 
to  exercise  the  three  powers  of  government.^  The  book  in 
which  he  formulated  his  theory  was  widely  read  in  America  as 
well  as  in  Europe,  and,  there  can  be  no  doubt,  had  influence 
upon  the  thought  of  the  colonists.  This  influence  was  doubly 
great  because  of  the  frequent  conflicts  which  had  arisen  in  the 
Colonies  between  the  legislative  and  executive  authorities,  and 
because  the  powers  of  the  colonial  governments  were  more  or 
less  definitely  separated  in  accordance  with  this  theory.  Thus 
Montesquieu's  influence  wa;s  reenforced  by  that  of  actual  colonial 

1  Montesquieu,  "  The  Spirit  of  the  Laws,"  Book  XI,  Chap.  6. 


26  C0MPARAT1\'E    VREV.   GOVERNMENT 

practices.  To  this  combined  influence  of  colonial  experience 
and  of  Montesquieu's  philosophy  was  added,  when  the  time 
came  for  the  establishment  of  the  new  federal  government,  the 
fear  of  monarchy.  The  framers  of  the  Constitution  believed, 
as  did  their  fellow  citizens,  that  the  danger  of  monarchy  would 
be  lessened  by  a  clean-cut  separation  of  the  departments  and 
by  keeping  them  separated  by  rigid  constitutional  provisions. 

It  is  plain  that  the  theory  in  its  full,  extreme  form  is  an 
unworkable  theory.  It  cannot  be  put  into  operation.  There 
can  be  no  complete  separation  of  the  departments.  They 
must  come  together  at  certain  points  or  the  governmental 
machine  will  not  work.  There  is  bound  to  be  more  or  less 
overlapping  in  their  functions.  Indeed,  no  attempt  is  made  in 
the  Constitution  to  carry  out  the  theory  in  its  extreme  form. 
Some  of  its  limitations  were  recognized  by  the  men  who  drafted 
the  Constitution  and,  although  in  the  main  the  theory  was 
applied,  a  number  of  exceptions  to  it  were  made.  A  careful 
reading  of  the  Constitution  will  reveal  how  greatly  the  theory 
was  modified  as  it  was  actually  applied.  Each  department 
shares  more  or  less  the  powers  that  belong  to  the  others.  The 
President,  to  whom  is  given  the  executive  power,  shares  in  the 
exercise  of  legislative  power  through  his  right  to  recommend 
and  to  veto  legislation  anfl  through  his  |)ower  to  establish 
regulations  by  executive  order  that  ha\e  the  force  of  law. 
Congress,  through  its  power  over  revenue  and  expenditures 
and  through  its  power  to  create  new  administrative  depart- 
ments and  to  reorganize  or  destroy  existing  (lei)artments.,  exer- 
cises large  control  over  the  executive.  Through  its  absolute 
control  over  the  federal  courts  below  the  Supreme  Court  and 
through  its  right  to  pass  ujxjn  the  qualilications  of  judges, 
(Congress  exercises  a  vital  influence  upon  the  work  of  the  courts. 
The  Senate,  particularly,  breaks  over  into  the  fields  of  the 
executive  and  judicial  authorities.  In  the  confirmation  of 
appointments  and  the  ratifKation  of  treaties  it  shares  directly 
in  the  executive  power.  In  hearing  impeachment  cases  it 
sits  as  a  court  and  exercises  directly  the  judicial  fun(  tion.  The 
courts,  in  turn,  control  in  a  direct  way  the  work  of  Congress 
through  their  right  to  interpret  the  laws  :ind  (he  Constitution 
and  to  fleclare  arts  of  Congress  invalid.  The  latter  really 
amounts  to  a  judicial  veto.     So  it  is  clear  that  the  separation 


PRINCIPLES    OF   THE   CONSTITUTION  27 

of  the  departments  by  the  Constitution  is  by  no  means  complete. 
A  study  of  the  national  history  will  reveal,  also,  that  that 
separation  has  grown  less  distinct  with  the  development  of 
the  years. 

The  separation  theory  has  been  subjected  to  a  good  deal  of 
adverse  criticism  from  time  to  time,  particularly  in  recent 
years.  It  is  charged  against  it  that  it  divides  the  responsibility 
for  the  conduct  of  the  government  to  such  an  extent  that  in- 
efficiency and  corruption  result ;  that  it  causes  lack  of  harmony 
and  unnecessary  friction  in  the  working  of  the  government; 
that  it  frequently  causes  costly  delay  when  prompt  action  is 
desirable ;  that  it  is  primarily  responsible  for  the  development 
of  the  vast  and  complex  party  organizations  with  all  of  the 
attendant  evils;  that  it  is  not  essential  to  a  free  government 
and  that  it  "  altogether  works  for  confusion  and  obscurity 
instead  of  simplicity  and  efficiency."  ^ 

There  is  a  good  deal  in  these  criticisms.  Most  assuredly  the 
theory  breaks  down  completely  in  its  assumption  that  without 
a  separation  of  powers  liberty  cannot  exist.  One  need  take 
only  a  glance  at  the  working  of  the  EngHsh  government  to  see 
how  fallacious  the  theory  is  in  this  respect.  Moreover,  it  has 
been  the  cause  of  a  great  deal  of  friction  between  the  legislative 
and  executive  departments  in  the  course  of  the  years,  to  the 
sacrifice  of  the  highest  efficiency  in  the  government.  The 
Supreme  Court,  through  its  interpretations  of  the  Constitution, 
has  sometimes  overthrown  acts  of  Congress  which  the  Congress 
and  the  people  generally  have  thought  desirable;  as,  for  in- 
stance, the  decision  upon  the  income  tax  law  of  1894.  Because 
of  the  divided  responsibility  it  has  frequently  been  impossible 
to  fix  the  blame  definitely  for  objectionable  acts  as  well  as  for 
failure  to  act;  and  definiteness  of  responsibihty  is  essential 
in  a  free  government.  The  relation  of  the  separation  of  powers 
to  the  party  .system  will  be  discussed  in  a  later  chapter,  but 
note  should  be  taken  here  of  the  dangers  and  difficulties  which 
are  attendant  upon  a  deadlock  between  the  executive  and  legis- 
lative departments  when  the  President  is  controlled  by  one 
party  and  Congress  by  the  other.  Under  those  conditions  no 
advance  can  be  made  so  far  as  progressive,  constructive  legis- 
lation upon  controversial  questions  is  concerned.     Such  delay 

1  Beard,  "  American  Government  and  Politics,"  New  and  Revised  Edition,  p.  155. 


28  CUMrARATU  !•:    IRKK    (■.(  )\  l.RX.MKNT 

may  mean  serious  loss  to  the  nation.  Hence  it  is  jilain  that 
there  are  valid  criticisms  to  be  made  of  the  separation  theory. 

But  there  are  some  things  to  be  said  for  the  separation  of 
powers  as  well ;  it  is  by  no  means  all  bad.  There  are  some  solid 
virtues  in  an  executive  that  is  independent  of  the  legislature. 
In  fact,  in  the  go\ernment  of  a  people  with  the  political  tra- 
ditions, training,  and  habits  of  the  American  people,  an  executive 
under  the  control  of  the  legislature,  as  in  the  cabinet  system  of 
government,  would  probably  be  impossible.  Particularly  im- 
portant is  it  to  have  the  judicial  authority  beyond  the  absolute 
control  of  the  legislature.  Courts  that  are  subservient  to  any 
particular  interest  within  the  state  are  contrary  to  American 
traditions,  if  not  actually  opposed  to  the  sj^irit  of  American 
institutions.  And  the  form  of  any  government  or  of  any  part 
of  it  must  be  judged  in  connection  with  the  spirit  and  traditions 
of  the  people  over  whom  it  rules.  Moreover,  there  are  practical 
reasons  why  the  doctrine  of  the  separation  of  powers  is  not  to 
be  rejected  entirely.  It  has  within  it  sound  principles.  "  In 
government,  as  in  all  highly  developed  organizations,  differen- 
tiation of  function  and  division  of  laljor  are  essential.  Different 
requisites  are  demanded  for  different  duties,  and  efTiciency  is 
secured  by  specialization.  It  is  therefore  desirable  that  legis- 
lative, executive,  and  judicial  functions  should  in  general  be 
exercised  by  separate  organs,  and  that  within  these  further 
subdivisions  be  made."  '  Jiut  the  jjrimary  reason,  of  course, 
why  the  separated  departments  are  better  for  the  United  States 
is  found  in  the  accumulated  political  exi)erience  and  the  state 
of  mind  of  the  .Vmerican  people.  .\n  executive  that  is  respon- 
sible to  the  legislature  e[)itomizes  English  political  history; 
but  in  America  separation  of  the  dej)artments  in  the  main  is 
of  the  very  stuff  of  free  government.  An  increa.sing  dissatis- 
faction with  the  working  of  the  theory  is  to  be  noted,  however, 
anrl  it  may  well  be  that  still  further  modifications  will  occur; 
bul  its  abandonment  is  not  to  be  anticipated,  notwithstanding 
the  growing  inllticiKe  of  the  executive  in  legislation. 

Checks  and  Balances.  — The  separation  of  the  dc'|)arlnu'nts 
of  government  involves  necessarily  a  complicated  system  of 
checks  and  balances.  The  intention  was  not  sinipl\'  to  sc|)arate 
the  departments,  but  l(t  kci-p  them  scpMiatcd  in  tin  ir  functions 

'  (icttcli.  "  Iiilro<liiiti')n  t(i  I'olitital  .Sticnec,  "  pp.  i2j-22ii. 


PRINCIPLES   OF   THE   CONSTITUTION  29 

as  far  as  possible.  This  means  that  not  only  were  limits  es- 
tablished beyond  which  the  departments  should  not  go,  but 
that  each  has  been  given  certain  powers  by  which  it  is  definitely 
to  restrain  the  others  from  exceeding  their  constitutional  au- 
thority. Congress  has  the  power  of  impeachment  and  may 
withhold  supplies  from  the  executive.  The  Senate  may  check 
the  President  in  the  matter  of  appointments  and  in  the  exercise 
of  the  treaty-making  power.  The  President  has  the  veto  power 
over  acts  of  Congress  and  appoints  the  judges.  The  courts 
may  pass  upon  the  validity  of  acts  of  Congress  and  by  inter- 
pretation of  the  Constitution  and  the  laws  restrain  both  the 
legislature  and  the  executive.  The  departments  are  inde- 
pendent in  the  main,  but  are  nevertheless  dove-tailed  together 
in  such  a  way  as  to  make  each  dependent  on  the  others  in  vital 
respects.  The  Constitution  establishes  a  balance  of  powers 
and  makes  it  the  duty  of  each  department  to  help  maintain  that 
balance.  This  constitutional  provision  is  of  course  reenforced 
by  the  natural  desire  of  each  department  to  prevent  encroach- 
ment upon  its  powers.  Thus  self-interest  combines  with  moral 
and  legal  obligations  to  maintain  the  constitutional  adjustment. 
Some  kind  of  system  of  checks  and  balances  is  inevitable  in 
every  free  government.  Indeed,  it  may  be  said  to  be  a  sine  qua 
non  of  free  government.  Restraints  of  some  kind  there  must 
be  upon  governmental  authority.  The  peculiarity  of  the 
system  of  checks  and  balances  in  the  United  States  which 
differentiates  it  so  fundamentally  from  the  system  provided  by 
the  English  Constitution  is  that  the  former  is  a  vast  system  of 
legally  established  checks  which  may  be  enforced  by  the  courts, 
while  the  latter  is  a  limited  system  of  checks  and  balances  which 
rests  partly  upon  legal  provisions  and  partly  upon  traditions, 
habits,  and  understandings  which  can  only  be  enforced  by  an 
appeal  to  public  opinion.^  The  results  are  the  same,  but  the 
methods  are  vitally  different.  In  each  country  there  is  a 
harmonizing  and  balancing  of  powers.  In  the  one  this  is 
accomplished  chiefly  by  the  provisions  of  the  written  Constitu- 
tion; in  the  other  by  the  understandings  of  the  unwritten 
Constitution.  It  should  be  noted,  however,  that  not  all  of 
the  checks  that  are  operative  in  the  United  States  are  contained 
in  the  Constitution.     The  party  system  furnishes  a  positive 

iMacy,  "The  English  Constitution,"  p.  35. 


30  COMPARATINI-:    IREE   GOVERNMENT 

check  of  great  potency,  but  the  party  system  is  entirely  outside 
the  Constitution.  This  influence  is  seen  particularly  when 
the  executive  and  legislative  branches  are  controlled  by  oppos- 
ing parties.  Public  opinion  is  likewise,  as  in  England,  a  power- 
ful restraining  influence,  but  public  opinion  is  not  the  creation 
of  the  Constitution. 

RKI-EREXCES 

Bryci;.     Tlic  American  Commomicalth,   Edition   1910,  \'ol.  I,  Chaps.   I\', 

XXIX,  XXX. 
Ford.     The  Rise  and  Growth  of  American  Politics,  Chaps.  II,  III,  I\'. 
GooDNOw.     The  Principles  of  the  Administrative  Law  of  the  United  States, 

Book  I,  Chaps.  Ill,  IV. 
Mkrriam.     American  Political  Theories,  Chaps.  II,  III,  IV. 
Smith.     The  Spirit  of  American  Government,  Chaps.  II,  III. 
WooDBURN.     Tiie  American  Republic,  Chap.  I. 


I 


CHAPTER   IV 

The  Presidency 

The  presidency  is  one  of  the  greatest  political  offices  in  the 
world.  No  official  in  any  of  the  other  free  governments  has  so 
much  power  as  the  occupant  of  the  presidency  in  the  United 
States.  The  English  prime  minister  alone,  perhaps,  is  to  be 
compared  with  him.  In  the  great  dignity,  power,  and  influence 
of  the  presidency  is  found  one  of  the  striking  features  of  the 
American  constitutional  system.  Its  place  in  the  government, 
under  the  political  party  regime  that  has  developed,  is  not  exactly 
what  the  framers  of  the  Constitution  intended  it  should  be ; 
its  occupant  does  not  bear  the  precise  relationship  to  the  legis- 
lative department  that  was  expected,  nor  does  he  show  that 
independence  of  popular  control  which  was  thought  so  necessary ; 
it  has  not  always  been  held  by  men  who,  in  point  of  ability  or 
temperament,  have  measured  up  to  the  high  requirements  set 
by  its  creators  for  such  an  exalted  position ;  but,  notwithstand- 
ing the  valid  criticisms  that  may  be  made  of  it  or  of  the  men 
who  have  held  it,  the  presidency  has  proven  a  notable  success 
as  an  institution  of  government.  It  has  stood  the  test  of  ex- 
perience and  is  stronger  to-day  than  at  any  previous  time  in  the 
Nation's  history,  with  the  exception  of  the  Civil  War  period 
when  the  normal  balance  of  the  government  was  destroyed. 
No  other  part  of  the  governmental  system  is  looked  upon  by 
the  common  people  with  more  satisfaction  than  the  presidency. 
Fearful  concerning  it  as  the  people  generally  were  in  the  be- 
ginning, it  now  belongs  to  them  and  to  it  they  look  more  and 
more  as  a  means  of  accomplishing  their  purposes  in  the  field  of 
national  politics. 

Fluctuations  in  the  Presidency's  Influence.  —  The  presidency, 
as  a  determining  force  in  the  Nation's  politics,  has  had  its  ups 
and  downs.  Its  influence  has  varied  from  time  to  time,  some- 
times greater,  sometimes  less,  depending  upon  the  characters 

31 


32  COMPARATIVE   FREE   GOVERN]\Ii:XT 

and  personalities  of  the  men  who  have  held  it,  and  the  political 
conditions  and  problems  that  confronted  it.  The  history  of 
the  presidency  naturally  breaks  up  into  a  number  of  distinct 
periods,  of  which  separate  accounts  should  be  taken,  as  Presi- 
dent Woodrow  Wilson  suggests.  The  thought  of  this  eminent 
writer,  partly  in  his  own  words,  is  here  given. ^ 

The  first  period  extends  from  1789  to  1825  during  which  the 
government  was  establishing  itself  at  home  and  gaining  recog- 
nition abroad.  In  this  period  men  were  chosen  to  the  presidency 
who  were  trained  to  an  unusual  degree  for  the  leadership  of 
the  Nation.  The  second  period  is  that  in  which  the  headstrong, 
imperious  Jackson  forced  his  will  upon  the  Nation,  regardless 
of  legal  or  constitutional  refinements.  The  third  jieriod  may 
be  said  to  date  from  1836  to  1861,  during  which  great  questions 
of  domestic  policy  were  fought  out  and  Congress  assumed  the 
dominant  place.  In  this  period  the  Presidents  "  lacked  the 
personal  force  and  initiative  to  make  for  themselves  a  leading 
place  in  counsel."  The  fourth  i)eriod  is  the  time  of  the  Civil 
War  in  which  for  a  time  under  Lincoln  the  presidency  became 
almost  a  dictatorship,  "  Congress  merely  voting  supplies  and 
assenting  to  necessary  laws,  as  Parliament  did  in  the  time  of 
the  Tudors."  The  fifth  period  extends  from  1865  to  iSgS, 
during  which  domestic  questions  were  again  to  the  front  and 
Congress  was  in  the  ascendancy,  President  Cleveland  alone 
among  the  Presidents  of  this  period  taking  any  "  leading  and 
decisive  part  in  the  drama  of  national  life."  The  war  with 
Spain  in  i8q8  marked  the  beginning  of  the  sixth  and  present 
period  in  which  there  has  been  a  shifting  of  positions  and  powers 
and  the  President  again  has  become  the  national  leader.  In 
recent  years  the  presidency  has  been  the  most  conspicuous  part 
of  the  government  and  its  occui)ant  has  had  centered  upon  him 
the  attention  of  the  entire  nation.  It  is  not  at  all  unlikely  that 
the  presidency  will  (ontiniic  to  hold  pi  rniaiicntly  a  relatively 
larger  place  in  the  government  than  it  fornuTly  did.  The 
exigencies  of  party  politics  seem  to  demand  aggressive  leailn- 
shi|)  on  ihc  part  of  llic  President. 

The  Constitution  Makers  and  the  Presidency.  The  organi- 
zation of  the  executive  de[)artment  of  the  government  furnished 
one  of  the  most  i)U/-zling  [)rol)lems  which  the  makers  of    the 

'  Wilsnn.  "Constitutional  Government  in  the  Ignited  Stufes,"  pp.  57-50. 


THE   PRESIDENCY  33 

Constitution  had  to  solve.  No  other  part  of  their  work  gave 
them  more  concern  than  this,  and  no  other  was  considered  with 
greater  care.  Widely  different  views  as  to  the  character  of  the 
executive  and  the  extent  of  its  powers  were  held  and  expressed, 
and  it  was  only  after  many  concessions  had  been  made  by  the 
opposing  elements  in  the  convention  that  the  plan  for  the 
presidency,  as  contained  in  the  Constitution,  was  agreed  upon. 
Like  all  of  the  other  important  features  of  the  Constitution, 
the  executive  organization  which  was  finally  accepted  was  the 
product  of  compromise. 

On  one  thing,  however,  the  constitutional  convention  was 
unanimous  from  the  start.  The  executive  must  have  sufficient 
power  to  make  it  an  effective  agency  of  government.  The 
impotency  of  the  Congress  under  the  Articles  of  Confederation 
must  be  avoided.  On  the  other  hand,  the  power  of  the  execu- 
tive must  be  so  hmited  and  its  exercise  so  hedged  about  by  re- 
strictions that  all  danger  of  monarchy  would  be  averted.  But 
just  how  should  this  be  accomphshed?  Should  the  executive 
power  be  lodged  with  one  person  or  with  several ;  should  there 
be  a  single  or  a  plural  executive  ?  Should  the  person  or  persons 
exercising  the  executive  powers  be  dependent  directly  upon  the 
people  for  the  commission  of  authority  or  should  the  executive 
be  chosen  by  indirect  methods?  Should  Congress,  the  legis- 
lative branch  of  the  government,  be  given  the  power  to  choose 
the  executive  and  thus  make  the  executive  dependent  upon  the 
legislature?  If  a  single  executive  were  estabUshed,  should  there 
be  provided  a  privy  council  in  addition  to  act  as  an  advisory 
and  restraining  body  ?  These  were  questions  of  vital  importance 
and  were  considered  with  care  and  debated  with  vigor. 

An  early  agreement  was  reached  in  favor  of  a  single  executive 
in  place  of  the  plural  executive  which  was  urged  so  strongly  by 
some  members  of  the  convention.  There  were  historical  prec- 
edents for  the  plural  form  and  plausible  arguments  were 
advanced  in  support  of  it,  but  the  majority  of  the  convention 
felt  that  unity  and  promptness  of  action,  and  therefore  effective- 
ness, might  be  destroyed  if  the  executive  powers  were  divided 
among  the  members  of  a  council.  The  dangers  of  too  great 
centralization  of  power  in  one  individual  might  better  be  risked 
than  impotency  and  indecisiveness  at  critical  times  through 
too   much   diffusion   of  power.     So   the   single   executive   was 

D 


34  COMPARATIVE   FREE  GOVERNMENT 

decided  upon.  In  reaching  this  conclusion  the  men  of  the 
convention  were  chiefly  influenced  by  the  experience  of  the 
States  with  their  governors,  some  of  whom  bore  the  title  of 
president.  The  people  were  accustomed  to  the  exercise  of  the 
chief  executive  power  by  a  single  individual.  Thus  the  es- 
tablishment of  the  presidency  to  be  held  by  one  man  was  quite 
in  accord  with  American  experience  and  seemed  to  involve  no 
inherent  risk  of  executive  usurpation  which  would  result  in 
monarchy. 

The  amount  of  power  that  the  executive  should  have  was  a 
different  matter,  however,  and  gave  cause  for  a  great  deal  of 
vigorous  discussion.  Should  the  executive  be  independent  of 
the  legislature  or  not?  If  independent,  should  it  have  power 
to  negative  or  veto  acts  of  the  legislature?  Should  power  over 
the  questions  of  peace  and  war  be  lodged  with  the  executive? 
Would  the  exercise  of  such  power  be  likely  to  lead  to  the  over- 
throw of  the  republic  and  the  establishment  of  monarchy? 
How  much  control  over  the  judiciary  should  the  executive  have? 
Should  it  have  the  power  of  appointment  and  removal  of  officers? 
What  control  should  the  executive  have  over  legislation  ?  Should 
it  be  confined  entirely  to  the  work  of  executing  the  laws  passed 
by  the  legislature?  These  and  many  other  questions  of  similar 
import  were  asked  and  thoroughly  discussed  by  the  convention. 
The  answer  to  them  was  the  creation  of  an  office  that  had  no 
counterpart  in  any  of  the  then  existing  nations  of  the  world. 
This  is  not  the  place  to  give  in  detail  the  powers  that  were  con- 
ferred upon  the  President  ;  the  present  purpose  is  simply  to 
indicate  the  nature  of  the  problem  with  which  the  convention 
wrestled  in  determining  the  organization  and  authority  of  the 
executive  fieparlment.  The  decision  of  the  convention  was  that 
the  executi\e  should  have  large  powers  over  both  domestic  and 
foreign  affairs  and  that  in  the  exercise  of  its  powers  it  should 
be  independent  of  both  the  legislative  and  judicial  departments. 
It  was  made  coorrjinatc  with  the  other  departments  and  was 
not  to  be  bound  by  the  restraining  influence  of  an  advisory 
council,  cxcejjt  with  regard  to  treaties  and  appointments  to 
office,  in  which  the  Senate  was  to  have  its  share. 

The  Presidency  a  Democratic  Institution.  — The  ever  present 
fear  in  the  minds  of  great  numbers  of  people  at  the  time  the 
Constitution    was    being    formulated    by    the   convention    and 


THE   PRESIDENCY  35 

later  when  it  was  presented  to  the  States  for  ratification,  was 
the  fear  of  monarchy.  The  estabhshment  of  a  monarchic 
government  was  the  one  thing  of  all  things  to  be  prevented. 
Any  feature  of  the  new  government,  therefore,  that  might  ap- 
pear to  be  in  contravention  of  the  prevailing  antimonarchic 
sentiment  was  certain  to  be  the  subject  of  bitter,  denunciatory 
criticisms.  The  presidency  came  in  for  its  full  share  of  this 
hostile  comment.  It  was  suggested  in  the  constitutional  con- 
vention that  the  executive  department,  as  finally  established  by 
the  constitution,  savored  of  monarchy  and  that  the  President, 
through  his  power  of  appointment  and  his  control  of  the  army 
and  navy  and  his  independence  of  the  legislative  department, 
might  be  able  to  subvert  the  republic  and  turn  himself  into  a 
king.  This  view  was  repeated  again  and  again  when  the 
Constitution  was  submitted  for  ratification.  It  is  very  ques- 
tionable, indeed,  whether  ratification  could  ever  have  been 
obtained  if  the  people  had  voted  upon  the  Constitution  directly. 
Even  as  it  was,  with  the  ratification  left  to  conventions  within 
the  States,  almost  a  year  passed  before  favorable  action  by 
nine  States,  necessary  to  put  the  Constitution  into  force,  could 
be  brought  about.  There  can  be  no  doubt  that  much  of  the 
hesitancy  was  due  to  the  dissatisfaction  that  was  felt  concern- 
ing the  organization  and  the  powers  of  the  presidency.  And 
yet  this  widely  prevalent  fear  as  to  the  dangers  inherent  in  the 
presidency  was  groundless,  as  the  whole  history  of  the  United 
States  under  the  Constitution  has  so  clearly  shown. 

Instead  of  becoming  monarchic  in  character  the  presidency 
has  become  more  democratic  with  the  passing  of  the  years,  far 
more  democratic,  in  fact,  than  the  framers  of  the  Constitution 
ever  intended  that  it  should  be.  Under  the  party  system  it 
has  become  the  chief  agency  for  the  execution  of  the  popular 
will.  Although  it  was  not  intended  to  be  so,  the  President's 
responsibility  is  now  directly  to  the  people,  and  it  is  to  him  that 
they  look,  more  than  to  any  other  officer  or  department  of  the 
government,  as  the  champion  of  their  rights  and  interests. 
It  is  the  President,  more  than  any  other,  who  is  the  spokesman 
of  the  people.  Democracy  is  stronger,  not  weaker,  because  of 
the  presidency.  Curiously  enough,  however,  it  was  not  the 
intention  of  the  framers  of  the  Constitution  to  promote  democ- 
racy through  the  presidency.     They  did  not  believe  very  much 


36  COMPAR.\TT\F.    FREE    GOVERXMKXT 

in  democracy,  even  the  most  democratic  of  them.  They  were 
almost  as  anxious  to  prev^cnt  the  President  from  becoming  too 
dependent  on  the  masses  as  they  were  to  prevent  him  from 
transforming  himself  into  a  monarch.  That  is  why  they  re- 
jected the  plan  to  have  him  chosen  directly  by  the  people  and 
provided  for  his  indirect  election  by  presidential  electors. 
Contrary  to  the  commonly  expressed  fear  the  presidency  has 
never  endangered  the  Republic ;  and  contrary  to  the  intention 
of  the  fathers  it  has  become  directly  dependent  upon  and  re- 
sponsible to  the  people  themselves. 

The  presidency  is  the  distinctive  feature  of  the  L'nited  States 
government.  It  gives  name,  indeed,  to  that  type  of  free  gov- 
ernment of  which  the  United  States  is  the  most  notable  example, 
ditlerentiating  it  from  the  cabinet  or  parliamentary  type.  It 
stands  as  one  of  the  great,  vital  contributions  of  the  United 
States  to  the  science  of  government.  Its  occupant  does  not 
hold  merely  an  ornamental  position,  useful  only  in  a  social  way, 
but  is  the  real  head  of  the  Nation  with  powers  and  res[XMisibili- 
ties  greater  than  are  those  of  monarchs  in  the  Old-World  coun- 
tries. The  way  in  which  he  is  elevated  to  his  high  jjosition  by 
the  votes  of  his  fellow  citizens,  and  the  way  in  which,  after  his 
term  of  office  has  expired  and  his  successor  has  been  chosen,  he 
retires  to  the  seclusion  of  private  life,  shorn  of  his  jjower  and  on 
a  perfect  legal  equality  with  all  those  whom  he  has  served, 
furnish  striking  evidence  of  the  strength  and  merit  of  the  presi- 
dency as  an  instrument  of  democracy.  The  President  in  olTice 
is  simply  the  servant  of  the  people;  the  President  retired  from 
office  is  simply  one  of  the  jjcople.  His  usefulness  to  the  State 
after  retirement,  however,  is  by  no  means  at  an  end  if  he  chooses 
to  interest  himself  actively  in  public  alTairs,  but  his  work  is 
that  of  a  private  citizen  unless  by  the  action  of  his  fellows  he 
is  again  called  to  the  |)ublic  service. 

Of  course  the  presidency  is  not  a  perfect  institution  of  govern- 
ment. Vali«l  criticisms  may  he  made  of  it  and  of  the  way  in 
which  it  often  works.  It  is  po.ssible  that  liif  (klails  of  its  or- 
ganization as  worker!  out  in  the  Constitulioii  might  be  improved. 
Il  is,  indeed,  a  great  prize  which  stirs  the  ambitions  of  men  and 
often  leads  them  to  .sacrifice  convictions  and  consistent  conduct 
in  order  to  obtain  an  election  or  a  rt-i-lection.  It  does  offer 
opportunities  for  the  corrupt  use  o{  power.      The  four  years' 


THE   PRESIDENCY  37 

term  is  possibly  too  short  and  the  reeligibility  of  the  President 
may  invite  and  sometimes  does  lead  to  manipulation  and 
scheming,  to  obtain  a  reelection,  which  are  seriously  detri- 
mental to  the  public  interest.^  But  perfect  political  institu- 
tions are  not  found  in  this  world  of  imperfect  men,  and,  in  spite 
of  all  the  criticisms  that  have  been  made  against  it,  the  presi- 
dency has  been  a  conspicuously  successful  part  of  the  federal 
government.  Its  merits  are  by  no  means  offset  by  its  demerits ; 
its  strength  by  its  weakness.  Although  in  operation  it  differs 
radically  in  some  respects  from  the  original  intention,  the  presi- 
dency stands  as  a  monument  to  the  wisdom  and  statesmanship 
of  the  men  who  planned  it  and  established  it.  And  its  success 
has  been  so  marked  that  it  has  been  taken  as  a  model  for  the 
executive  organizations  in  most  of  the  other  Republican  states 
of  the  New  World. 

REFERENCES 

(For  References,  see  the  following  chapter.) 

1  Br>'ce,  "The  American  Commonweahh,"  New  and  Revised  Edition,  Vol.  I, 
pp.  69-71. 


OiAJi-4  . 


CIL^PTER  V 

The  Election  of  the  President 

The  evidence  that  the  working  constitution  of  the  United 
States  is  radically  dillterent  from  the  written  document  upon 
which  its  governmental  institutions  are  based,  is  perhaps 
clearer  in  connection  with  the  presidential  office  than  with  any 
other  part  of  the  government.  In  form  the  presidency  is  still 
what  it  was  planned  to  be ;  in  spirit  it  is  not.  The  intention 
of  its  originators  with  regard  to  the  manner  of  election,  dej)end- 
ence  upon  the  people,  and  freedom  from  partisanship  has  not 
been  followed.  With  the  exception  of  George  Washington  no 
President  has  been  chosen  in  the  spirit  and  according  to  the 
real  intention  of  the  men  who  drafterl  the  Constitution.  More- 
over, Washington  alone  of  the  Presidents  conducted  the  office 
in  the  way  originally  planned.  In  a  sense  the  oflice  was  created 
for  Washington  ;  that  is,  he  was  the  man  whom  the  great 
majority  of  people  considered  almost  ideally  filled  for  the  place 
and  wh(jm  they  expected  to  see  made  the  first  President.  It 
seems  to  be  clear  that  the  men  of  the  convention  were  inlluenced 
in  working  out  the  organization  of  the  executive  i)\-  tin-  belief 
that  Washington  was  the  man  who  would  be  given  the  leader- 
ship in  the  actual  work  of  .selling  up  the  new  government.  He 
presided  over  the  convention  and  thoroughly  understood  and 
approved  the  convention's  intention  concerning  the  purpose  of 
the  presidential  (jffice.  lUit  the  jhKciiI  of  |)olilical  i)arties  and 
the  development  of  the  party  system  (hanged  the  \ery  character 
of  the  office,  and  some  of  the  things  that  the  men  of  the  con- 
vention dreaded  and  ho|)ed  to  |)re\(nl  are  now  expet  hd  and 
held  to  be  essential. 

The  |)urpose  of  the  (DiiNcnlioii  is  (Icar.  The  i'resiik-nt  was 
fo  be  the  bi-si  tilled  man  for  the  plaic  in  I  he  entire  Nation, 
from  the  standpoints  of  ability,  diaractc-r,  temp(  lament ,  and 
training.     He  was  to  be  free  from  partisanshi|),  impartial,  of 


THE   ELECTION  OF  THE   PRESIDENT  39 

national  vision,  loyal  to  all  of  the  States  alike,  devoted  to  the 
highest  interests  of  the  Nation.  He  was  not  to  be  the  represent- 
ative of  a  group  or  a  faction,  or  a  party,  but  the  leader  and 
representative  of  the  whole  people.  By  his  very  qualities  of 
character  he  was  to  be  above  factional  strife  and  above  par- 
ticipation in  political  intrigues  of  any  kind.  His  one,  undivided 
aim  would  be,  without  thought  of  himself  or  of  any  State  or  of 
any  class,  to  promote  the  welfare  of  all  the  people. 

In  order  to  insure  the  choice  of  such  a  man  for  the  presidency 
a  special  plan  for  his  election  was  devised.  The  choice  of  the 
President,  as  Alexander  Hamilton  argued  in  The  Federalist, 
was  not  made  to  "  depend  on  pre-existing  bodies  of  men,  who 
might  be  tampered  with  beforehand  to  prostitute  their  votes," 
but  was  referred  "  in  the  first  instance  to  an  immediate  act  of 
the  people  of  America,  to  be  exerted  in  the  choice  of  persons  for 
the  temporary  and  sole  purpose  of  making  the  appointment."  ^ 
That  is,  provision  was  made  for  a  special  body,  which  has  come 
to  be  known  as  the  electoral  college,  whose  sole  duty  it  should 
be  to  select  the  President.  To  make  sure  that  no  one  should 
take  part  in  this  selection  who  might  have  a  personal  interest 
in  the  choice,  it  was  provided  that  no  Senator,  Representative, 
or  other  person  holding  a  place  of  trust  or  profit  under  the 
United  States  should  serve  as  a  presidential  elector.  "  Thus, 
without  corrupting  the  body  of  the  people,  the  immediate 
agents  in  the  election  will  at  least  enter  upon  the  task,  free  from 
any  sinister  bias." 

Constitutional  Plan  of  Choosing  the  President.  —  Thus  the 
choice  of  a  President,  according  to  the  Constitution,  is  made 
only  indirectly  by  the  people.  Each  State  is  required  to  choose 
a  number  of  electors  equal  to  the  number  of  its  Senators  and 
Representatives  in  the  national  Congress.  These  electors 
meet  in  their  respective  States,  at  the  time  prescribed  by  Con- 
gress, and  vote  by  ballot  for  President  and  Vice  President. 
Under  the  original  provision  they  were  to  vote  for  two  persons 
and  the  one  receiving  the  highest  number  of  votes,  provided 
he  had  a  majority  of  the  whole  number  of  electors,  was  elected 
President,  and  the  one  having  the  next  highest  number  of  votes 
was  elected  Vice  President.  But  experience,  after  the  political 
parties  sprang  up,  showed  that  this  provision  would  not  work 

»  The  Federalist,  No.  68. 


40  COMPARATWE   FREE   GOVERNMENT 

because  the  party  controlling  the  majority  in  the  electoral 
college  would  cast  the  same  number  of  votes  for  its  two  candi- 
dates and  neither  could  be  declared  elected  President  or  Vice 
President,  as  was  the  case  in  the  election  of  1800  in  which 
Thomas  Jetlerson  and  Aaron  Burr  were  candidates.  This 
provision  of  the  Constitution  was  changed  by  the  twelfth  amend- 
ment by  which  the  electors  vote  definitely  for  a  President 
and  a  Vice  President.  The  record  of  the  vote  in  each  State  is 
certified  in  the  proper  way  and  sent  to  Washington,  addressed 
to  the  president  of  the  Senate.  In  the  presence  of  both  houses 
of  Congress  the  votes  are  counted  and  the  candidate  for 
President  and  the  candidate  for  Vice  President  having  the 
highest  number  of  votes  are  declared  elected,  if  in  each  case  this 
number  is  a  majority  of  the  whole  number  of  electors.  If  no 
candidate  for  President  has  a  majority,  the  choice  goes  to  the 
House  of  Representatives,  where  the  candidates  having  the 
highest  votes,  not  exceeding  three  in  number,  are  balloted 
u[)on,  the  vote  being  taken  by  States.  Each  State  has  one  vote 
and  a  majority  of  all  of  the  States  is  necessary  for  an  election. 
In  case  no  candidate  for  V^ice  President  receives  a  majority  of 
all  the  electors  the  choice  goes  to  the  Senate  where  from  the 
two  highest  candidates  the  selection  is  made,  a  majority  of  the 
whole  number  of  Senators  being  necessary  for  a  choice. 

The  method  of  choosing  the  presidential  electors  is  left  to 
the  States,  acting  through  their  legislatures.  The  selection  may 
be  made  by  the  Slate  legislatures  themselves,  i)y  popular  vote, 
or  by  any  other  methofl  which  the  legislatures  may  prescribe. 
The  time  of  the  election  is  fixed  by  Congress.  Hut,  regardless 
of  the  way  in  which  they  are  chosen,  the  whole  legal,  constitu- 
tional power  to  elect  the  President  rests  with  the  college  of 
electors.  Kach  elector  is  free,  as  far  as  the  written  Constitution 
is  concerned,  to  vote  for  whomsoever  he  pleases.  Indi-ed,  that 
is  what  he  is  expected  to  do  according  to  the  |)l;m  of  the  fathers. 
It  was  by  means  of  this  picked  body  oi  presidential  electors  that 
they  hopefl  to  obtain  the  one  man  in  the  entire  nation  best 
fitted  for  the  ofiice  of  President.  It  was  the  intention  that 
these  men  should  meet  at  designated  places  in  their  respective 
Stales  and  there,  free  from  personal  considerations,  factional 
strifes,  party  influence,  and  popular  clamor  pick  out  the  man 
most  i)erfectly  ef|ui|)|)ed  in  every  way  for  the  high  ofllce  of 


THE   ELECTION   OF  THE   PRESIDENT  41 

President.  The  framers  of  the  Constitution  felt  certain  that 
with  this  system  of  indirect  election  in  operation  no  unfit  person 
would  ever  become  the  head  of  the  Nation.  Hamilton,  arguing 
for  the  ratification  of  the  Constitution,  expressed  his  opinion  in 
this  way :  "  This  process  of  election  affords  a  moral  certainty, 
that  the  office  of  President  will  seldom  fall  to  the  lot  of  any 
man  who  is  not  in  an  eminent  degree  endowed  with  the  requi- 
site qualifications.  Talents  for  low  intrigue,  and  the  little  arts 
of  popularity,  may  alone  suffice  to  elevate  a  man  to  the  first 
honors  of  a  single  State ;  but  it  will  require  other  talents,  and  a 
different  kind  of  merit,  to  estabhsh  him  in  the  esteem  and 
confidence  of  the  whole  Union,  or  of  so  considerable  a  portion  of 
it,  as  would  be  necessary  to  make  him  a  successful  candidate  for 
the  distinguished  office  of  President  of  the  United  States. 
It  will  not  be  too  strong  to  say,  that  there  will  be  a  constant 
probability  of  seeing  the  station  filled  by  characters  pre-eminent 
for  abiUty  and  virtue."  ^ 

Hamilton  in  this  statement  expressed  the  view  of  the  majority 
of  his  associates  in  the  constitutional  convention.  They  were 
not  all  of  one  opinion  as  to  the  wisdom  of  having  a  single  ex- 
ecutive with  such  great  powers  as  were  given  to  the  President, 
but  they  finally  agreed  that  if  there  was  to  be  such  a  President, 
the  method  prescribed  for  his  election  was  the  very  best  that 
could  be  devised.  The  dangers  that  might  lurk  in  the  organ- 
ization of  the  presidency  would  be  minimized  by  the  manner 
of  electing  those  who  were  to  hold  it.  Particularly  would  it 
be  impossible  for  men  to  get  into  the  presidency  by  currying 
favor  with  the  masses.  The  danger  of  too  much  democracy 
in  the  selection  of  the  President  would  be  averted. 

Failure  of  the  Electoral  Plan.  —  But  how  has  the  plan  worked  ? 
How  successful  has  it  been?  How  accurately  did  its  sponsors 
foresee  the  developments  of  American  politics?  Except  in  the 
case  of  Washington  it  has  not  worked  at  all  as  it  was  intended. 
It  was  the  first  part  of  the  Constitution  to  break  down  ;  and 
the  collapse  was  strikingly  complete.  It  is  significant  in  this 
connection  that  the  plan  of  electing  the  President  was  one  of 
the  few  features  of  the  Constitution  that  was  practically  original 
with  the  constitutional  convention.  In  almost  all  respects 
the  Constitution  is  built  on  solid  experience,  but  the  electoral 

'  The  Federalist,  No.  68. 


42  COMPARATRE   FREE   GOVERNMENT 

college  was  an  experiment.  Ihal  this  experimental  feature 
of  the  Constitution  was  the  first  to  fall  is  illustrative  of  the 
dangers  that  confront  any  people  who  seek  to  erect  their  gov- 
ernmental system  upon  untried  theories. 

The  reason  for  the  failure  of  the  electoral  college  to  work 
according  to  design  is  easy  to  find.  The  strange  thing  is  that 
the  men  who  planned  it  did  not  foresee  the  inevitable  result. 
The  development  of  political  parties  made  the  plan  impossible. 
When  Washington  retired  at  the  end  of  his  second  term  the 
party  sj)irit  Ijlazed  out  and  the  Federalist  and  Democratic- 
Republican  parties  were  formed.  Each  party  had  its  candi- 
dates for  President  and  Vice  President  and  expected  its  repre- 
sentatives in  the  electoral  college  to  vote  for  their  party  nominees. 
The  moment  it  was  settled  that  Washington  would  not  consent 
to  a  third  election  it  was  plain  that  his  successor  would  not  be 
chosen  by  the  electors  in  that  calm,  dispassionate  manner  con- 
templated by  the  framers  of  the  Constitution  because  of  his 
special  fitness  for  the  presidential  office,  but  that  he  would  be 
chosen  as  a  party  man  Ijecause  his  i)arty  controlled  a  majority 
of  the  electoral  votes.  The  organization  of  parties,  for  reasons 
that  will  be  considered  later,  was  inevitable.  All  through  the 
eight  years  of  Washington's  administration  the  division  of  the 
people  into  two  opjwsing  {)arlies  was  taking  place.  As  the  years 
I)assed,  the  line  of  separation  became  more  marked,  one  side 
tending  more  and  more  to  favor  the  exercise  of  wide  ])owers  by 
the  central  or  national  government,  and  the  other  side  standing 
out  as  the  champion  of  the  States  and  local  governments  as 
against  the  Nation.  This  division  of  ojiinion  upon  the  inter- 
j)relation  of  the  C'onstitution  began,  indeed,  in  the  constitu- 
tional convention  itself.  It  seems  now  that  it  should  have  been 
clear  to  the  men  of  the  convention  that  |)oliti(al  |)arlies  would 
inevitably  result  from  the  dilTcrtnc  es  of  opinion  manifested  in 
the  constitutional  debates;  \>\\\  tliis  was  not  the  case  an<l  it 
clearly  was  their  hope  that  the  I'resident  would  never  be  selet  led 
as  a  result  of  a  parly  struggle,  luiually  clear  was  their  intention 
to  j)revent  such  a  siruggli-,  if  f)ossible,  by  the  establishment  of 
the  electoral  college.  lUit  their  plan  broke  down  almost  at  the 
start  anri  from  the  lime  of  the  election  of  |<il)ii  Adams,  in  1796, 
tr)  the  present  the  Presirlenls,  almost  without  exception,  have 
Ix'cn  cho.sen  as  parly  men  and   the  ])residential  electors  have 


THE   ELECTION   OF  THE   PRESIDENT  43 

simply  registered  the  will  of  their  respective  parties.  The  real 
selection  of  the  President,  therefore,  is  made  by  the  people  of 
the  States  at  the  election  when  they  vote  for  electors,  now  called 
the  presidential  election. 

Actual  Method  of  Choosing  the  President.  —  It  is  plain  that 
the  method  of  choosing  a  President  that  has  prevailed  almost 
from  the  beginning  is  not  a  part  of  the  written  Constitution. 
It  is  one  of  the  many  extra-constitutional  features  of  the  United 
States  government.  The  important  steps  in  the  procedure  that 
is  followed  should  be  noted. 

First  of  all  is  the  selection  of  the  party  candidate,  for  no  one 
will  receive  electoral  votes  who  is  not  the  candidate  of  a  party 
with  sufhcient  strength  to  elect  some  of  the  presidential  electors. 
The  choice  of  the  presidential  candidate  of  each  party,  under 
the  practice  that  has  prevailed  during  the  greater  part  of  the 
Nation's  life,  is  made  by  a  national  convention  composed  of 
delegates  from  all  of  the  States  and  Territories.  These  con- 
ventions are  usually  held  in  June  or  July  of  the  year  of  the 
presidential  election.  For  months  preceding,  the  chief  political 
interest  of  the  nation  centers  upon  the  work  of  the  nominating 
conventions,  and  the  selection  of  delegates  by  the  different 
States  is  followed  with  the  closest  attention.  Sometimes  there 
may  be  only  one  leading  candidate  and  he  will  receive  the 
nomination  by  acclamation,  or  if  the  opposition  is  strong  enough 
to  prevent  a  nomination  by  acclamation,  he  may  have  sufficient 
strength  to  be  nominated  upon  the  first  ballot.  Sometimes  the 
nomination  is  hotly  contested  by  two  or  more  candidates  and 
the  nomination  may  come  only  after  many  ballots  are  taken 
by  the  convention.  And  then  it  may  go  to  some  one  who  has 
not  been  a  leading  aspirant ;  indeed,  it  may  go  to  some  one  who 
has  not  been  looked  upon  as  a  candidate  at  all,  a  so-called 
"  dark  horse." 

The  national  conventions  of  the  leading  parties  are  rightly 
looked  upon  by  the  people  generally  as  of  vital  concern.  It  is 
there  that  the  choice  of  the  people,  to  be  determined  later  at 
the  November  election,  is  narrowed  to  two  men,  the  candidates 
of  the  two  leading  parties.  One  or  the  other,  under  the  normal 
working  of  the  party  system,  unless  removed  by  death,  will 
become  President  and  will  have  it  in  his  power  to  influence  pro- 
foundly the  course  of  the  Nation's  history. 


44  COMPAR  VnVR    FREE   GOVERNMENT 

As  soon  as  the  conventions  have  made  their  nominations, 
the  i)resi(lenlial  election  campaip;n  l)egins.  From  the  time  the 
conventions  adjourn  until  the  election  in  November  the  tight 
is  waged  in  all  of  the  States,  usually  with  increasing  intensity 
as  the  day  of  the  election  approaches.  In  all  of  the  States 
presidential  electors  must  be  chosen.  As  already  indicated, 
the  method  of  choosing  the  electors  is  left  to  each  State.  The 
regular  rule  now  is  for  each  political  party  by  a  party  primary 
or  convention  to  nominate  in  each  State  candidates  for  all  of 
the  electors  to  which  that  State  is  entitled.  The  voter  at  the 
general  election  votes  for  those  electors  who  represent  the 
party  whose  presidential  candidate  he  favors.  Under  the  pre- 
vailing practice  the  voter  does  not  vote  for  one  elector  only,  but 
for  the  entire  number  to  which  his  State  is  entitled.  The 
electors  are  thus  usually  chosen  by  the  general  ticket  system 
and  not  by  the  district  system,  though  this  is  a  matter  for  the 
States  to  determine.  The  voter  does  not  vote  directly  for  the 
presidential  candidate,  of  course  ;  he  votes  for  one  set  of  electors 
and  thus  indicates  his  preference  as  to  presidential  candidates. 
As  soon  as  the  results  of  the  November  election  in  the  ditTercnt 
States  are  ascertained  the  people  know  who  is  to  be  their  ne.\t 
President.  Of  course  no  legal  election  of  a  President  has 
occurred  ;  the  voters  of  each  State  have  simply  declared  their 
preference.  But  the  contest  is  at  an  end,  although  the  legal 
election  is  still  to  come,  for  the  presidential  electors  will  merely 
carry  out  the  instructions  given  to  them  by  the  voters  of  their 
respective  States.  The  electors  observe  the  strict  letter  of  the 
Constitution  and  of  the  law  as  prescribed  by  Congress,  but  their 
work  is  entirely  perfunctory  and  without  sj)ecial  interest  to  the 
general  public,  for  every  one  knows  in  advance  what  the  vote 
in  the  electoral  college  will  be.  No  elector  would  think  of  voting 
against  the  candidate  of  his  |)arty. 

The  general  procedure  which  must  be  observed  l)\'  (he  electors 
is  j)rescribed  by  the  Constitution,  as  already  indicated.  De- 
tails have  been  left  to  Congress  and  the  State  legislatures  to 
work  out.  By  an  act  of  Congress  the  electors  of  each  Slate  are 
required  to  meet  on  the  second  Monday  of  January  ne.xt  fol- 
lowing their  election  at  whatever  place  has  been  designated  by 
the  State  legislature  -  always  the  State  ca|)ital  -  for  the 
purpose  of  casting  their  ballots  for  President  and  Vice  President. 


THE   ELECTION   OF  THE   PRESIDENT  45 

The  manner  in  which  the  vote  is  to  be  certified  and  sent  to  the 
president  of  the  Senate  at  Washington,  to  be  counted  in  the 
presence  of  both  houses  of  Congress  has  already  been  described. 
This  count  takes  place  on  the  second  Wednesday  in  February. 
The  significant  thing  to  note  is  that  the  method  of  electing  a 
President  contained  in  the  Constitution  has  become,  because 
of  the  party  system,  a  mere  formality,  the  observance  of  which 
is  important  only  because  such  observance  is  necessary  in  order 
to  make  the  election  legal. 

Consequences  and  Dangers  of  the  Electoral  System.  —  The 
working  of  the  electoral  college  scheme  in  connection  with  the 
prevailing  party  system  has  a  number  of  important  conse- 
quences. The  plan  of  the  constitution  makers  has  been  set 
aside  and  there  has  been  substituted  for  it  a  general  election  in 
which  all  of  the  voters  of  the  country  may  take  part,  but  this 
election  is  not  a  truly  popular  election,  although  it  is  frequently 
referred  to  as  such.  The  election  is  really  by  States  and  the 
outcome  of  the  election  is  not  determined  by  the  result  of  the 
popular  election  in  the  Nation  as  a  whole ;  that  is  to  say,  the 
success  of  a  candidate  is  not  dependent  upon  his  receiving  a 
majority  of  the  total  vote  in  the  Nation.  His  success  depends 
upon  his  carrying  enough  States  to  give  him  a  majority  of  the 
presidential  electors.  But  a  candidate  may  receive  a  majority 
of  the  electoral  votes  and  have  only  a  minority  of  the  popular 
vote.  This  has  happened  upon  several  occasions.  Abraham 
Lincoln,  for  instance,  in  i860,  received  only  1,866,452  votes, 
while  the  combined  vote  of  his  opponents  numbered  2,815,617. 
Yet  in  the  electoral  college  Lincoln  had  57  more  votes  than  all 
of  his  opponents.  In  this  case  the  votes  opposed  to  Lincoln 
were  divided  among  a  number  of  candidates.  But  even  when 
there  are  only  two  candidates  it  may  happen  that  the  one  re- 
ceiving a  minority  of  the  popular  vote  will  obtain  a  majority 
of  the  electoral  votes  because  of  the  particular  combination  of 
States  that  he  carries.  In  1888  Harrison  received  a  hundred 
thousand  fewer  votes  than  Cleveland,  but  had  a  majority  of 
sixty-five  in  the  electoral  college.  This  result  springs  from  the 
fact  that  the  presidential  electors  are  chosen  on  a  general  ticket, 
and  the  total  vote  of  a  State  in  the  electoral  college  goes  to  the 
candidate  that  carries  the  State  in  the  general  election,  no 
matter  how  small  may  be  his  majority  over  his  competitor. 


46  COMPARATUH    FREE    r,OVi:RXMF:XT 

Indeed,  he  may  have  only  a  plurality  if  there  is  a  third  candidate 
with  any  considerable  strength.  In  1884  Cleveland  carried 
the  State  of  New  York  over  Blaine  by  a  margin  of  only  114Q 
votes.  A  change  of  only  575  votes  from  the  Democratic  to  the 
Republican  candidate  would  have  elected  the  latter.  But  the 
entire  electoral  vote  of  the  State  went  to  Cleveland,  giving 
him  the  necessary  majority.  Majorities  for  Blaine  in  other 
States,  however  large,  could  have  no  effect  upon  this  result. 
A  small  majority  in  a  State  at  the  presidential  election  is  just 
as  effective  in  controlling  the  electoral  vote  of  that  State  as  is 
a  large  majority. 

Another  result  of  very  great  significance  comes  from  this 
system.  Since  the  election  is  really  by  States,  the  chief  interest 
in  the  presidential  election  centers  in  the  "  close  "  or  "  doubtful  " 
States.  The  decision  in  these  States  is  likely  to  determine  the 
result  in  the  Nation.  The  party  that  can  carry  the  doubtful 
States  will  probably  win.  The  effect  of  this  is  not  only  to  center 
popular  interest  upon  the  struggle  in  these  Slates,  but  to  con- 
centrate the  efforts  of  the  party  managers.  The  States  that 
are  "  safe  "  or  "  sure,"  that  is,  the  States  that  can  be  depended 
upon  to  give  their  accustomed  majority  for  the  one  party  or 
the  other,  receive  comi)aratively  little  attention  from  the  cam- 
paign managers.  In  the  doubtful  States,  however,  the  cam- 
paign is  waged  with  the  greatest  intensity,  each  j)arty  struggling 
to  the  utmost  of  its  ])ower  to  carry  enough  of  these  to  insure 
the  election  of  its  candidate.  They  are  invaded  by  an  army 
of  speakers  and  deluged  by  a  flood  of  campaign  "  literature." 
Large  sums  of  money  are  spent  to  "  organize  "  the  voters  and 
get  out  the  vote.  In  short,  the  real  fighting  in  the  presidential 
campaign  takes  place  in  these  jjivotal  States.  The  influeiue 
of  this  is  by  no  means  .salutary.  In  fact,  it  is  just  the  opposite-. 
The  prize  at  stake  is  so  great  that  campaign  managers  and  party 
workers  often  make  use  of  corrujjt  means  to  accom[)lish  their 
purposes.  The  use  of  so  much  money,  particularly,  is  objec- 
tionable. It  leads  lo  bribery  and  other  disreputable  practices. 
The  influence  of  it  all  is  anything  but  good  upon  the  life  and 
citizenship  of  the  State.  This  practice  of  making  the  close 
States  bear  the  brunt  of  the  campaign  is  inevitable,  however,  as 
long  as  the  [)resent  method  of  electing  the  President  prevails. 
A  truly  [)opular  election  would  of  course  remedy  the  difliculty 
in  large  measure. 


THE   ELECTION   OF   THE   PRESIDENT  47 

That  there  are  possible  dangers  to  the  country  in  connection 
with  the  constitutional  method  of  choosing  the  President  is 
clearly  shown  by  the  Hayes-Tilden  controversy  growing  out  of 
the  presidential  election  of  1876.  Neither  candidate  had  a 
majority  of  the  electoral  votes  unless  votes  from  States  in  which 
the  charge  of  fraud  was  made  were  counted  for  him.  In  each 
of  the  States  in  which  fraud  was  charged  there  were  two  sets  of 
electors,  each  claiming  to  be  the  properly  chosen  electors.^ 
The  difficult  problem  was  to  decide  which  votes  should  be 
counted,  a  problem  concerning  which  the  Constitution  is  silent. 
Yet  some  method  for  the  settlement  of  the  controversy  had  to 
be  discovered  or  serious  danger  to  the  Nation,  perhaps  war, 
might  ensue.  The  device  hit  upon  by  Congress  which  assumed 
jurisdiction  over  the  problem  was  a  special  electoral  commission 
which  finally,  by  a  strict  party  vote,  recognized  the  claims  of 
the  Repubhcan  electors  and  thus  gave  the  presidency  to  Hayes. 
The  crisis  passed  and  the  danger  to  the  Union  was  averted,  but 
the  experience  revealed  some  of  the  serious  defects  of  the  elec- 
toral plan.  Ten  years  later,  in  1887,  Congress  attempted  to 
remedy  the  difficulty  by  passing  a  statute  which  requires  that 
each  State,  through  tribunals  established  for  that  purpose,  shall 
pass  upon  the  legahty  of  its  electoral  votes.  If  a  State  fails 
to  provide  for  this  special  court,  then  the  decision  rests  with 
Congress,  and,  if  the  two  houses  cannot  agree,  the  vote  of  the 
State  concerned  is  lost.  This  is  doubtless  better  than  no  remedy 
at  all  for  the  Constitution's  omission,  but  it  is  plain  that  the 
remedy  itself  is  not  free  from  defects  and  objections.  The 
decisions  of  the  States  might  be  anything  but  fair.  Fraud  can 
easily  enter  in  and  determine  the  choice  of  the  President.  It  is 
quite  possible  under  the  law  of  1887  for  Congress  to  override 
the  will  of  a  State  or  shut  it  out  completely  from  participation 
in  the  electoral  college  vote,  and  thus  practically  dictate  the 
selection  of  a  President.  The  point  would  seem  to  be  well 
taken  that  the  Constitution  itself  must  be  changed  before  the 
dangers  inherent  in  the  present  system  will  be  removed. 

Another  omission  of  the  Constitution  in  this  connection  is 
deserving  of  notice.  No  way  is  provided  for  the  selection  of  a 
President  in  case  the  President-elect  and  the  Vice  President- 

» The  States  involved  were  South  Carolina,  Florida,  Louisiana,  and  Oregon.  In 
the  case  of  Oregon  the  eharKC  of  fraud  was  not  made. 


48  COMPARATIXE   FREE   GOVERN^IENT 

elect  should  die  durinfi;  ihc  time  that  intervenes  between  the 
second  Monday  in  January  when  the  electors  meet  and  the 
fourth  of  March  when  the  President  is  inaugurated,  a  possibility 
that  is  not  at  all  fanciful.  Of  course  if  the  successful  candidates 
should  die  at  any  time  preceding  the  second  Monday  in  January, 
the  electors  could  proceed  to  select  a  President  and  V'ice  Pres- 
ident according  to  the  design  of  the  Constitution.  But  if  that 
should  happen  after  the  electors  have  assembled  and  voted,  the 
problem  is  a  very  different  one.  Opinions  differ  as  to  what 
could  be  done,  but  the  belief  seems  to  be  growing  that  here  is  a 
case  of  a  real  omission  of  the  Constitution  upon  a  vital  point 
which  can  be  remedied  only  by  a  constitutional  amendment. 
Manifestly  serious  consequences  may  arise  under  the  Constitu- 
tion as  it  is  at  present.' 

Suggested  Reforms.  —  Various  reforms  in  the  method  of 
choosing  the  J'resident  have  been  suggested  from  time  to  time. 
The  most  important  seeks  to  abolish  the  electoral  college  and 
leave  the  election  of  the  President  to  the  people.  It  has  been 
a  useless  part  of  the  governmental  machine  almost  from  the 
beginning.  Moreover,  danger  lurks  within  it.  It  was  estab- 
lishefl  largely  as  a  check  upon  the  people,  i)ut  the  rising  tide 
of  democracy  has  swept  it  aside  in  spite  of  the  Constitution, 
although  it  still  stands  in  the  way  of  a  genuine  popular  election. 
As  long  as  the  college  oi  electors  is  retained,  its  members,  under 
the  present  party  system,  will  probal)ly  be  chosen  according  to 
the  general-ticket  plan.  This  means  the  continuation  of  a 
practice  which  permits  the  election  of  a  President  by  a  minority 
«)f  the  people  and  makes  possible  his  election  i)y  actually  fraudu- 
lent votes.  This  is  not  t)nly  undemocratic,  but  unsafe.  In 
the  interest  of  democracy,  therefore,  as  well  as  to  avoid  un- 
neces.sary  risks,  the  college  of  electors  should  be  eliminated  by 
constitutional  amendment   and  tlnre  should  be  substituted  in 

'  In  (.ISC  (lolli  the  I'risidfnl  :in<l  tin-  \  i<  «•  I'rtMclriil  should  <lif.  il  is  prnvidol  in 
the  rrcsidcnti.-il  Sucicssion  Law,  e-nndcd  !)>■  ConKrcss  in  iH8f>,  that  mcmlxTs  of  ihc 
<iit>inft  shall  siKcccd  to  the  prisidrncy  in  the  order  prisi  rilicd  The  order  of  sur- 
ri-Hsion  it  as  follows:  Sc-i  rct.in,'  of  State;  Seirclary  of  (lie  Treasiin,- ;  Sccn-tary  of 
War;  Attorney  flrncral ;  Postmaster  Cieneral ;  Sec  retary  of  iheNavy;  Secretary 
of  the  Interior.  At  the  lime  the  Sucression  law  was  pass4'd,  these  were  the  cmly  de- 
partment* cxi<(tinK.  The  Se«retaries  of  the  departments  created  since  that  time  — 
.Aicridiltiire,  Commcrrc,  and  Labor  have  not  lieen  authori/.ed  to  succeed  to  the 
ptesidency. 


THE   ELECTION   OF  THE   PRESIDENT  49 

its  place  a  genuine  popular  election  of  the  President  which  will 
enable  the  majority  of  the  voters  to  carry  out  their  will. 

There  can  be  no  question  that  the  spirit  and  the  purpose  of 
this  reform  are  in  accord  with  the  sentiment  of  the  present  day. 
There  is  a  marked  desire  on  the  part  of  the  people  to  democra- 
tize all  of  the  undemocratic  features  of  the  government.  The 
whole  of  the  government  must  be  brought  closer  to  the  source 
of  its  power.  The  presidency,  in  particular,  is  so  powerful  a 
poHtical  office  and  holds  so  strategic  a  position  in  the  govern- 
mental structure  that  the  people  should  control  it  directly  by 
voting  directly  for  those  who  are  to  occupy  it.  Effective  popular 
control,  moreover,  should  not  be  confined  to  the  formal  voting 
process  of  the  general  presidential  election,  but  should  be  ex- 
tended so  as  to  include  the  whole  nominating  process  as  well. 
The  mere  opportunity  to  choose  between  two  candidates  who 
have  been  nominated  by  small  groups  of  men  who  are  not 
definitely,  legally  representative  of  the  voters  and  who  may  be 
dominated  by  poUtical  bosses  and  controlled  by  political  ma- 
chines, is  not  sufficient  to  satisfy  the  demands  of  democracy  nor 
insure  the  election  of  a  President  who  will  truly  represent  the 
will  of  the  entire  people  as  expressed  by  the  electorate  at  the 
polls.  The  whole  nominating  process,  therefore,  must  also  be 
democratized. 

The  sentiment  in  favor  of  this  reform  has  developed  rapidly 
in  recent  years  and  has  assumed  the  form  of  a  demand  for  a 
presidential  primary.  The  national  conventions  have  never  in 
their  entire  membership  been  truly  representative  of  the  voters. 
Some  of  the  delegates,  chosen  at  direct  primaries  or  by  repre- 
sentative conventions  in  the  States,  have  given  true  expression 
to  the  will  of  their  constituents,  but  many  others  have  not 
because  they  have  been  under  the  domination  of  political 
bosses  or  party  machines  or  some  special  business  interests,  or, 
as  has  so  frequently  been  the  case,  have  been  controlled  by  the 
President  in  office  through  the  use  of  patronage.  The  federal 
office  holders  have  been  always  much  in  evidence  in  the  national 
convention  of  the  party  in  power.  That  this  is  not  only  unlair 
but  dangerous  is  a  feeling  that  has  been  growing  stronger  year 
by  year.  The  result  is  the  demand  for  a  presidential  primary 
at  which  the  voters,  with  all  of  the  safeguards  of  a  formal  elec- 
tion, shall  determine  what  candidates  their  respective  parlies 


50  COMPAK ATIVIC    I'REK    COX'ERNMENT 

shall  pul  forward.  This  particular  method  of  nomination  may 
prove  to  be  unsatisfactory,  if  it  is  adopted,  but  the  demand 
for  it  is  significant.  It  is  only  a  part  of  the  broader  movement 
which  seeks  to  place  the  presidency  under  genuine  popular 
control.  It  is  as  vital  to  this  purpose  to  have  popular  control 
over  the  nomination  of  candidates  as  to  have  popular  election 
after  the  nominations  are  made.  As  the  indirect  election  of  the 
President,  by  means  of  a  college  of  electors,  has  been  swept 
aside  by  the  rising  tide  of  democracy,  so  the  present  methods  of 
nominating  presidential  candidates,  by  means  of  which  the 
j)arty  leaders  and  organizations  are  enabled  to  maintain  their 
control,  must  give  way  to  other  methods  by  which  the  power 
over  nominations  is  placed  in  the  hands  of  the  people.  The 
spirit  of  democracy  is  abroad  in  the  land  and  will  not  now  be 
denied,  even  as  it  would  not  be  denied  in  the  beginning.  In  the 
United  States,  as  in  England,  the  conviction  grows  stronger 
year  by  year  that  the  will  of  the  people  must  prevail.  In  order 
to  make  that  will  effective,  readjustment  in  both  constitutional 
and  extra-constitutional  features  of  the  government  is  necessary, 
and  is  slowly  taking  place. 

Attention  should  be  called  at  this  i)i)int  to  the  constitutional 
qualifications  for  an  election  to  the  jircsidency.  Limitations 
were  placed  upon  the  [)resi(lential  electors  so  that  their  freedom 
of  choice  is  not  absolute.  No  person  e.xcejU  a  natural-born 
citizen  is  now  eligible  to  the  oflice  of  President.  Nor  is  any  one 
eligible  who  has  not  attained  the  age  of  thirty-five  years  and 
been  for  fourteen  years  a  resident  within  the  United  Stales.  ( )ne 
of  the  purposes  of  these  restrictions  was  manifestly  to  minimize 
the  dangers  of  foreign  inlluence  and  aggression.  Men  born  in 
the  United  States  would  be  more  likil\  to  be  free  from  the  taint  of 
monarchy  and  therefore  more  devoted  to  republican  institutions. 

Presidential  Term  and  Compensation.  Tlic  President's 
term  of  office  is  four  years,  with  no  constitutional  provision 
whatever  touching  the  question  of  reeligibility.  'I'his  unusually 
short  term  for  .so  important  an  oflice  has  l)een  liu-  subject  of  a 
great  deal  of  severe  criticism.  Hryce's  adverse  (omment  is 
l)arlicularly  jjointed,  l)Ul  he  is  by  no  means  alone  in  this;  many 
of  the  ablest  American  publicists  find  ihc  provision  e(|ually 
objectionable.  They  hold  with  Hrycc  iliat  the  presidential 
election,  coming  so  fretjuently,  throws  the  (ountrx-  into  a  state 


THE   ELECTION   OF   THE  PRESIDENT  51 

of  turmoil  and  uncertainty  for  which  there  is  often  no  real  occa- 
sion ;  that  this  frequency  of  elections  causes  a  discontinuity  of 
policy  which  is  not  only  unnecessary,  but  often  seriously  detri- 
mental to  the  nation's  interests.  It  is  held  also  that  the  fact 
that  a  President  is  eligible  for  reelection  often  has  an  unfavorable 
influence  upon  him;  he  is  tempted  to  "  play  politics  "  in  order 
to  obtain  a  renomination  and  thus  sacrifice  the  good  of  the 
Nation  to  his  selfish  ambitions.^  That  there  is  merit  in  these 
criticisms  cannot  well  be  questioned.  There  is  good  argument  in 
support  of  the  theory  that  the  term  should  be  increased  to  six  or 
seven  years  and  that  the  President  should  be  ineligible  for  re- 
election. It  must  be  remembered,  however,  that  there  are 
great  benefits,  from  the  standpoint  of  patriotism  and  citizen- 
ship, which  spring  from  these  frequently  recurring  presidential 
elections.  There  can  be  no  doubt  that  they  have  profound 
educational  results.  They  give  to  the  voters  the  opportunity 
to  take  stock  of  what  their  representatives  in  office  have  done, 
and  force  them  to  pass  judgment  upon  the  Nation's  policies. 
The  value  of  this  in  any  democratic  government  is  not  to  be 
questioned,  although  it  is  easy  to  place  too  much  emphasis  upon 
it.  Moreover,  it  should  be  added,  a  term  of  four  years  is  more 
than  enough  in  the  case  of  an  inefficient  or  otherwise  objection- 
able President. 

The  Constitution  places  no  limit  upon  the  number  of  times 
a  President  may  be  reelected.  Tradition  or  custom,  however, 
fixes  the  limit  at  one  reelection.  Washington  was  importuned 
to  accept  a  third  term,  but  refused,  and  from  that  time  on  the 
two-term  precedent  has  been  observed,  although  there  have  been 
attempts  to  break  it,  notably  that  in  the  case  of  General  Grant 
whose  supporters  made  a  vigorous  and  almost  successful  effort 
to  force  his  nomination  for  a  third  time.  Thus  far  the  "  no 
third  term  "  tradition  has  held,  even  when  the  terms  are  not  suc- 
cessive, but  it  can  hardly  be  said  to  be  an  absolutely  settled 
pohcy.  It  is  doubtful,  in  fact,  if  the  opposition  to  a  third  term  is 
as  pronounced  and  widespread  now  as  in  former  years.  The 
large  vote  cast  for  Theodore  Roosevelt  in  191 2  suggests  a  radical 
change  in  the  popular  mind  with  respect  to  this. 

The  compensation  of  the  President,  by  the  terms  of  the  Con- 

'  Bryce,  "  The  American  Commonwealth,"  New  and  Revised  Edition,  Vol.  I, 
pp.  69-72. 


52  COMPARATn'K    FREE   GOVERNMKN'T 

stitulicMi,  is  fixed  by  the  Congress.  His  formal  salary  was  made 
$25,000  a  year  at  the  beginning.  In  1S71  this  was  increased  to 
$50,000  and  remained  at  that  figure  until  1909,  when  it  was  made 
$75,000.  This  is  simply  the  personal  salary  of  the  President 
and  by  no  means  represents  the  total  expense  incurred  in  sup- 
port of  the  presidency.  The  maintenance  of  the  executive 
offices  with  their  large  clerical  force,  the  upkeep  of  the  White 
House  and  its  grounds,  the  traveling  expenses  of  the  President 
and  various  other  items,  bring  the  total  exi)enditure  up  to 
$:;oo,ooo  or  more.' 

The  Vice  Presidency.  —  A  word  concerning  the  vice  presi- 
dency may  be  added  here  as  appropriately  as  anywhere.  It  is 
difficult,  as  a  matter  of  fact,  to  find  a  logical  place  for  a  discus- 
sion of  the  Vice  President  and  his  functions  for  the  reason  that 
the  constitutional  position  of  the  vice  presidency  is  illogical. 
It  is,  indeed,  a  misfit  in  the  national  governmental  structure. 
It  is  a  practically  useless  office. 

The  Vice  President  is  chosen  for  a  term  of  four  years  in  the 
same  manner  as  the  President.  He  receives  a  salary  of  $12,000. 
His  part  in  the  oi)eration  of  the  government  consists  in  presiding 
over  the  .Senate,  where  he  sits  as  a  parliamentary  official,  exer- 
cising no  control  over  the  deliberations  of  the  Senate  except 
in  the  case  of  a  tie  vote,  when  the  decision  of  the  question  rests 
with  him.  The  Constitution  provides  that  in  case  of  the 
removal  of  the  President  from  ofllce,  or  of  his  death,  resignation, 
or  inability  to  discharge  his  functions,  his  powers  and  duties 
shall  devolve  upon  the  Vice  President.  I'liat  this  is  an  impor- 
tant [jrovision  of  the  Constitution  is  ai)un(iantly  proven  by  the 
number  of  instances  in  which  Vice  Presidents  have  succeeded 
to  the  presidency  due  to  the  death  <>f  the  Presidents.  The 
Vice  President  as  such  does  nothing  but  |)resi(le  in  theSniate 
and  has  no  official  relation  whatever  to  the  Presidtiil.  The 
President  may  consult  with  him  if  he  wishes  to,  but  apparently 
this  practice  has  never  been  followed  to  any  marked  degree. 

The  vice  prcsiflency  should  be  treated  with  more  respect  than 
it  has  received,  because  of  the  fact  that  its  incumbent  may  sud- 
denlv  succeed  to  the  f)residency.  That  fart  ought  to  insure  the 
utmost  care  in  the  selection  of  ihc\i(c  i'rcsidcnl .  but  tliat  it  has 

'  Utanl,  "  Amcritiin  (lovcrnmcnt  and  I'olitics,"  New  and  Kcviscd  Edition,  p. 
205. 


THE   ELECTION  OF  THE   PRESIDENT  53 

not  done  so,  under  the  working  of  the  party  system,  is  a  certainty 
beyond  all  question.  The  vice  presidency  has,  indeed,  been 
only  a  tail  to  the  presidential  kite.  In  selecting  their  candidates 
for  Vice  President  the  national  party  conventions  have  been 
actuated  by  a  variety  of  motives.  Sometimes  the  nomination 
has  gone  to  a  leading  competitor  of  the  successful  candidate  for 
the  presidential  nomination.  Sometimes  it  has  gone  to  the 
favorite  son  of  some  doubtful  State  in  order  to  help  hold  that 
State  in  line  at  the  election.  At  other  times  it  has  gone  to  the 
representative  of  some  faction  in  order  to  insure  harmony 
within  the  party.  And  at  still  other  times  it  has  gone  to  the 
man  who  could  make  the  largest  contribution  to  the  party's 
campaign  fund.  The  merits  of  the  candidate,  as  a  possible 
President,  usually  receive  very  slight  consideration.  The  es- 
sential thing,  from  the  standpoint  of  the  party  managers,  seems 
to  be  the  availability  and  financial  strength  of  the  candidate. 
The  result  is  that  men  have  often  been  elected  to  the  vice  presi- 
dency who  were  very  far  from  being  satisfactorily  equipped  for 
the  duties  of  the  presidency  which  they  might  have  been  called 
upon  to  assume. 

There  is  clear  need  for  greater  care  in  the  selection  of  the 
Vice  President.  And  there  is  clear  need,  also,  for  bringing  the 
Vice  President  into  reasonably  close  relations  with  the  adminis- 
trative work  of  the  government,  so  that  if  he  is  called  upon  to 
succeed  the  President,  he  will  be  somewhat  familiar  with  the 
work  that  must  be  done.  The  suggestion  that  the  Vice  Presi- 
dent should  have  a  seat  at  the  cabinet  table  and  take  part  in 
formulating  the  policies  which  he  not  improbably  may  be  com- 
pelled to  execute,  is  one  of  real  merit.  Under  the  constitutional 
plan  he  is  merely  a  highly  ornamental  officer  with  high  social 
standing  and  no  poHtical  power.  By  the  accident  of  death  or 
from  some  other  cause,  he  may  become  the  most  powerful  polit- 
ical officer  in  the  Nation,  if  not  the  world.  As  Bryce  so  aptly 
puts  it,  he  is  aut  nullus  aut  CcBsar} 

REFERENCES 

Beard.     American  GovcrnmnU  and  Politics,  Edition  1914,  Chap.  IX. 
Bryce.     The  American  Commonwealth,  Edition  1910,  Vol.  I,  Chap.  V. 

»  Bryce,  "  The  American  Commonweelth,"  New  and  Revised  Edition,  Vol.  I, 
p.  300. 


54  COMPARATIVE   FREE   GOVERNMENT 

Dougherty.     The  Electoral  System  of  the  United  States. 

The  Federalist,  Nos.  67  to  72  inclusive. 

Ford.     The  Rise  and  Groidh  of  American  Politics,  Chaps.  XV,  XXII. 

Hart.     Actual  Government,  Chap.  XV. 

Stanwood.     .1  History  of  the  Presidency. 

Wilson.     Constitutional  Government  in  the  United  States,  Chap.  IIL 

WooDBURN.     The  American  Republic,  Chap.  Ill,  pp.  94-142. 


CHAPTER  VI 

The  President  as  an  Executive 

The  powers  of  the  President  cover  a  wide  range  of  govern- 
mental activities.  They  relate  to  both  foreign  and  domestic 
affairs  and  involve  legislative  as  well  as  executive  functions. 
These  powers  are  so  vast  that  the  President  who  is  strong  in 
mind  and  will,  and  aggressive  in  character,  can  make  himself  the 
dominant  force  in  the  government.  Before  taking  up  in  detail, 
however,  the  discussion  of  the  President's  powers  and  duties, 
it  is  well  to  have  in  mind  the  essential  provisions  of  the  Con- 
stitution. 

The  whole  executive  power  of  the  national  government  is 
vested  in  the  President,  and  he  is  required  to  take  care  that  the 
laws  are  properly  executed.  He  is  made  commander  in  chief  of 
the  army  and  navy  and  of  the  militia  of  the  States  when  called 
into  the  service  of  the  United  States.  He  is  given  power  to 
grant  reprieves  and  pardons  for  offenses  against  the  United 
States,  except  in  cases  of  impeachment.  With  the  advice  and 
consent  of  the  Senate  he  is  given  power  to  make  treaties  and  to 
appoint  ambassadors,  consuls,  judges  of  the  Supreme  Court, 
and  all  other  officers  of  the  United  States  whose  appointment  is 
not  provided  for  in  the  Constitution  or  by  acts  of  Congress.  He 
may  veto  bills  and  resolutions  passed  by  Congress  and  may  con- 
vene both  houses,  or  either  of  them,  in  special  session,  when  in 
his  judgment  occasion  demands.  In  case  they  cannot  agree 
as  to  the  time  of  adjournment,  the  President  may  adjourn  them 
to  whatever  time  he  thinks  proper.  It  is  also  his  right  and  duty, 
under  the  Constitution,  to  give  to  Congress,  from  time  to  time, 
information  concerning  the  state  of  the  Union  and  recommend 
whatever  legislation  he  may  think  necessary  and  expedient. 
Upon  him  is  imposed  the  duty  of  receiving  foreign  ambassadors 
and  other  public  ministers,  and  of  commissioning  all  the  officers 
of  the  United  States. 

55 


56  COMPARATR'E    FREE    GOVERN^IEXT 

The  President  as  Chief  Executive.  —  It  will  be  noticed  that 
the  functions  of  the  President,  as  listed  in  the  Constitution, 
naturally  divide  into  two  main  classes,  those  relating  to  domestic 
affairs  and  those  dealing  with  foreign  afTairs.  It  will  also  be 
noticed  that,  despite  the  theory  of  the  separation  of  powers  which 
underlies  the  main  structure  of  the  government,  the  President 
has  been  charged  with  the  exercise  of  legislative  as  well  as 
executive  powers.  It  was  plain  to  the  men  who  drafted  the 
Constitution  that,  if  the  central  government  was  to  be  effective 
in  its  work,  the  President  could  not  be  confined  exclusively  to 
executive  duties.  It  is  desirable  to  take  up  each  of  his  important 
functions  for  separate  discussion. 

First  of  all  should  be  considered  the  President's  position  as 
the  Nation's  chief  executive.  It  is  the  primary  duty  of  the 
President  under  the  powers  granted  to  him  to  see  to  the  faithful 
enforcement  of  the  laws  of  the  United  States.  In  doing  this 
he  has  the  authority  of  the  Nation  behind  him.  He  must  see 
that  violations  of  the  laws  are  prosecuted  in  the  courts  and  that 
the  dignity  and  authority  of  the  Nation  are  maintained.  He  is 
responsiJjle  for  the  execution  of  the  policies  determined  upon  l)y 
Congress,  a  duty  that  becomes  more  difficult  to  perform  with  the 
increasing  complexity  of  industrial  and  political  life.  It  is  his 
duty  to  see  that  the  treaty  obligations  of  the  United  Stales 
are  ob.served.  In  the  discharge  of  these  duties  he  has  a  large 
power  of  direction  over  the  work  of  administrative  officials.  He 
is  chiefly  responsible  for  the  manner  in  which  the  administrative 
departments  are  conducted,  and  may  remove  officials  who  refuse 
or  fail  to  carry  out  his  orders.  He  cannot,  of  course,  ha\e 
personal  knowledge  of  all  that  trans|)ires,  but  in  him  the  execu- 
tive power  is  vested  and  to  him  the  Xatioii  looks  for  admiiiislra- 
tivc  direction  and  efficiency. 

In  the  performance  of  his  adminislrati\c  duties  the  President 
exercises  a  large  ordinance  power.  Under  this  j)owir  he  may 
supplement  the  acts  of  Congress  concerning  administrative 
activities  with  detailed  executive  rules  or  regulations.  Some  of 
the  systems  of  rules  which  he  has  established  in  this  way,  acting 
with  the  heads  of  the  executive  departments,  assume  the  ])ro- 
portions  of  codes  of  regulations,  such  as  those  whiih  apply  to 
the  army  and  navy,  aiirl  to  the  postal  service.  Among  other 
branches  of  the  government  in  which  there  arc  elaborate  systems 


THE   PRESIDENT  AS   AN  EXECUTIVE  57 

of  executive  regulations  may  be  mentioned  the  patent,  pension, 
and  land  ofl&ces  and  the  Indian,  consular,  customs,  and  internal 
revenue  services.  Many  of  these  regulations  are  established  in 
response  to  definite  instructions  by  Congress,  but  others  are  put 
in  operation  without  special  authorization  by  reason  of  the  gen- 
eral executive  power  vested  in  the  President.  It  should  be 
noted  that  this  is  closely  akin  to  the  legislative  or  law-making 
function.^ 

The  President's  Military  Powers.  —  The  military  powers  of 
the  President,  though  great  at  all  times,  are  especially  so  in  times 
of  war.  Then  they  expand  rapidly  and  tend  to  overshadow  the 
powers  of  other  branches  of  the  government.  The  President 
is  at  all  times  in  control  of  the  army  and  navy  and  appoints  all 
military  and  naval  officers  with  the  advice  and  consent  of  the 
Senate.  If,  because  of  rioting  or  violence,  he  considers  it  im- 
possible to  enforce  the  laws  of  the  United  States  by  the  ordinary 
judicial  processes,  he  may  call  upon  the  military  to  uphold  and 
enforce  the  national  authority,  as  President  Cleveland  did  at  the 
time  of  the  great  Chicago  railway  strike  in  1894.  In  times  of 
peace  the  President's  military  powers  are  under  rather  definite 
restrictions,  but  when  the  Nation  is  at  war  these  powers  become 
far-reaching  in  their  magnitude.  Practically  there  are  no  limi- 
tations upon  the  President  as  far  as  the  direction  of  the  war  is 
concerned.  It  is  for  him  to  decide  how  it  is  to  be  conducted. 
He  directs  the  campaigns,  establishes  blockades  when  he  wishes, 
and  is  responsible  for  the  way  in  which  the  army  and  navy  are 
managed.  "  The  President  is  not  limited  in  the  conduct  of  war 
to  the  direction  of  the  armed  forces;  he  may  do  whatever  a 
commander-in-chief  is  warranted  in  doing  under  the  laws  of  war 
to  weaken  and  overcome  the  enemy.  It  was  under  this  general 
authority,  inherent  in  his  office,  that  President  Lincoln,  during 
the  Civil  War,  suspended  the  writ  of  habeas  corpus  in  the  states 
that  were  not  within  the  theatre  of  the  armed  conflict.  It  was 
under  this  authority  that  he  abolished  slavery  in  many  of  the 
states ;  arrested  and  imprisoned  arbitrarily  those  charged  with 
giving  aid  and  comfort  to  the  Confederacy ;  estabhshed  a  block- 
ade of  southern  ports;  and,  in  short,  brought  the  whole  weight 
of  the  North,  material  and  moral,  to  bear  in  the  contest.    Greater 

>  See  powers  of  French  executive,  below,  Chap.  XLVII. 


58  COMPARATIVE   FREE   GOVERNMENT 

military  power  than  was  exercised  by  President  Lincoln  in  the 
conduct  of  that  war  it  would  be  difficult  to  imagine."  ' 

If,  as  a  result  of  a  war,  as  was  the  case  in  the  war  with  Spain, 
territory  is  acquired,  the  President  may  assume  control  and 
through  his  military  power  set  up  a  military  povcrnment  which 
will  continue  in  force  until  provision  is  made  by  Congress.  The 
President  may,  indeed,  under  these  conditions,  appoint  a  pro- 
visional civil  government  with  power  to  levy  taxes  and  establish 
courts  and  administrative  departments.  The  war  powers  of  the 
President,  it  is  thus  seen,  are  capable  of  vast  expansion  when  the 
need  arises. 

Power  of  Appointment.  —  The  power  of  appointment  which 
the  President  has  under  the  Constitution  and  the  laws  of  Con- 
gress is  one  of  the  most  important  powers  that  he  must  exercise. 
This  is  true  from  the  standpoint  of  administration  because  the 
efficienc}^  of  the  whole  government  machine  will  depend  in  large 
measure  upon  the  character  of  the  appointments  made  by  the 
President.  He  is  the  head  of  the  administrative  system  and  it 
lies  with  him  through  his  a[)pointments  to  determine  in  large 
measure  how  that  system  shall  work.  But  this  power  is  of 
great  consequence  al.so  from  the  standpoint  of  parly  politics. 
The  dislriiiution  of  public  offices  has  been  from  the  i)eginning  a 
matter  of  vital  concern  to  the  party  organizations.  The  party 
to  which  the  President  belongs  expects  him  to  use  the  ai)pointing 
power  so  as  to  strengthen  and  help  it  in  its  contests  with  the 
opposing  party.  This  is  usually  flone  by  the  President,  though 
perhaps  not  so  much  now  as  formerly.  It  must  be  kejjt  in  mind, 
in  this  connection,  that  the  President  is,  first  of  all,  the  leader  of 
his  party,  for  the  time  l)eing,  and  it  cannot  reasonably  be  ex- 
pected that  he  will  entirely  ignore  his  own  political  fortunes  and 
the  interests  of  his  party  in  making  appointments.  ]'robai)ly 
no  other  j)art  of  his  work  has  given  the  avi-rage  I'resident  more 
anxiety  than  this  question  of  appointments. 

There  arc  two  classes  of  appointments,  recognized  i)y  the  Con- 
stitution, which  the  President  is  required  to  make.  One  has 
to  <\o  with  the  chief  federal  officers  pro\i(ied  for  in  the  Consti- 
tution or  by  the  laws  of  Congress  whose  a|)pointment  requires 
confirmation  by  the  Senate,  and  the  other  relates  to  inferior 

'  B«",ir«l,  "American  (JovcrnmcrU  ami  I'DJitics,"  Niw  and  Revised  Kdilion,  pp. 
1^4-105. 


THE   PRESIDENT  AS   AN    EXECUTIVE  59 

officers  provided  for  by  acts  of  Congress  whose  appointment  has 
been  given  to  the  President  alone.  The  first  class  is,  of  course, 
by  far  the  more  important.  It  includes  justices  of  the  Supreme 
Court,  judges  of  the  lower  federal  courts,  ambassadors,  members 
of  the  cabinet,  consular  officers,  members  of  important  com- 
missions, like  the  interstate  commerce  commission,  postmasters 
in  the  larger  cities,  and  many  other  high  officials  whose  work  is 
vital  to  the  welfare  of  the  nation.  The  number  of  these  officials 
is,  of  course,  large,  and,  since  many  of  them  under  the  prevailing 
practice  hold  office  for  a  four-year  term,  each  President  is  sure 
to  be  called  upon  to  make  a  great  many  appointments.  The 
minor  appointments,  which  by  act  of  Congress  the  President  is 
required  to  make  without  consulting  the  Senate,  are  not  so 
numerous  as  the  others  and  as  a  rule  give  no  special  trouble. 
Some  of  the  minor  appointments,  by  direction  of  Congress,  are 
made  by  heads  of  departments.  But,  as  a  matter  of  fact,  most 
of  the  offices  created  by  Congress  and  filled  by  appointment  by 
the  President  require  confirmation  by  the  Senate.  There  are 
more  than  6000  of  these  presidential  offices,  carrying  with  them 
an  aggregate  salary  of  over  $12,000,000.^  It  is  easily  seen,  from 
the  mere  number  of  offices,  how  great  the  President's  appointing 
power  is  and  how  burdensome  its  exercise  is  certain  to  be  to  the 
conscientious  President. 

The  requirement  of  the  Constitution  that  the  President 
shall  appoint  a  large  number  of  officers  "  with  the  advice  and 
consent  of  the  Senate  "  has  been  the  cause  of  a  great  many  con- 
flicts between  the  President  and  the  Senate  and  has  had  serious 
consequences  to  the  Nation.  The  intention  of  the  constitution 
makers  seems  to  be  clear  enough.  Their  fear  of  a  possible 
monarchy  was  too  keen  to  permit  them  to  give  the  power  of  ap- 
pointment to  the  President  alone.  He  might  use  that  power  to 
further  his  own  ambitions  and  be  able  to  subvert  the  republican 
form  of  government.  Some  check  upon  him,  therefore,  was 
considered  imperative.  This  power  to  check  the  President 
was  given  to  the  Senate,  which,  representing  all  the  States  as  it 
does,  would  be  on  the  alert  to  prevent  him  from  making  ap- 
pointments which  were  in  his  own  interests  and  against  the 
interests  of  the  Union.  With  regard  to  both  appointments  and 
treaties  with  other  countries,  the  Senate  was  to  be  an  advisory 

*  Fairlie,  "  The  National  Administration  of  the  United  States,"  p.  4. 


6o  COMI'ARATIVI':    TRKK    GOVERNiMK XT 

body  to  the  President,  but  with  power  to  defeat  absolutely  his 
wishes  if  it  considered  that  he  was  acting  contrary  to  the  public 
interest.  It  was  obviously  not  the  intention  that  the  Senate 
should  dictate  to  the  President  in  the  matter  of  ai)pointnients, 
as  it  has  done  so  frequently  in  the  past,  but  that  it  should  simply 
see  that  he  does  not  use  the  appointing  power  to  the  injury  of 
the  Nation  by  putting  objectionable  men  into  office.  In  the 
words  of  Jefferson,  "  the  Senate  is  only  to  see  that  no  unlit 
person  is  appointed." 

The  part  which  the  Senate  has  played  with  regard  to  ap- 
pointments, however,  has  been  very  different  from  what  was 
intended.  Here  again  the  development  of  political  parties  has 
wrought  havoc  with  the  design  of  the  Constitution.  In  large 
measure  the  discretion  of  the  President  in  the  making  of  ap- 
pointments has  been  eliminated  by  the  aggressions  of  the  Senate. 
In  the  case  of  many  offices  he  is  compelled  to  appoint  men  who 
are  acceptable,  as  party  men,  to  the  Senators  from  the  Stales 
in  which  the  offices  are  located  if  those  States  are  represented  by 
Senators  of  the  President's  own  party.  If  he  does  not  do  this,  his 
appointments  will  not  be  confirmed  by  the  Senate.  The  prac- 
tice which  the  Senate  has  come  to  follow  with  respect  to  such 
appointments  is  known  as  "  senatorial  courtesy."  The  majority 
of  the  Senators  yield  to  the  Senators  most  concerned  and  if  the 
api)ointment  is  disapproved  by  them,  confirmation  is  withheld, 
and  the  President  is  forced  to  submit  the  name  of  some  one  who 
is  acce[)table  or,  at  any  rate,  who  is  less  objectionable  to  the 
I)rotesting  Senators  than  his  first  appointee.  The  result  of 
this  practice  is  that,  in  the  case  of  those  offices  to  which  it  ai)plies, 
the  a|)p()intments  are  really  mack-  by  the  Senators.  Thus  the 
President  has  practically  surrendered  some  of  his  constitutional 
rights  to  the  Senate.  In  ordir  to  avoid  opposition  to  his  ap- 
pointments, he  must  consult  ( irlain  Senators  in  adxanc  c  This 
rule  of  courtesy,  so  called,  is  not  an  iron-clad  rule,  however. 
Whether  the  President  submits  to  the  demands  of  the  Senate 
flepends  l.'irgcly  upon  his  character  and  temperament.  His 
action  is  al.so  sometimes  inlluenced  a  good  deal  by  the  interests 
of  his  party. 

'I'he  senatorial  courtesy  practice  does  not  ap|)ly,  however,  to 
all  appointments  made  by  the  President.  In  general,  Senators 
claim  privileges  un<ler  it  only  in  (onnection  with  federal  offices 


THE   PRESIDExVr   AS   AN    EXECUTIVE  6 1 

which  may  be  considered  local  in  their  jurisdiction,  such  as 
postmasters,  district  attorneys,  marshals,  judges  of  the  lower 
courts,  customs  officers,  and  the  like.  The  most  important 
appointments,  as  a  rule,  are  exempt  from  this  obstructive  sena- 
torial interference.  Usually  appointments  to  fill  vacancies  on 
the  Supreme  Court  are  confirmed  without  open  opposition, 
although  this  is  not  always  so.  During  President  Cleveland's 
second  administration  the  Senate  twice  rejected  his  nominee 
for  a  place  on  the  court.  Mr.  Cleveland  very  neatly  solved  the 
difficulty  by  sending  in  the  name  of  Mr.  White,  one  of  the  Sen- 
ators from  Louisiana,  and,  of  course,  "  senatorial  courtesy  " 
demanded  immediate  confirmation  of  the  appointment.  The 
President  is  also  comparatively  free  in  the  selection  of  ambas- 
sadors and  other  high  diplomatic  officers.  In  the  case  of  cabinet 
officers  he  is  entirely  free  to  make  whatever  appointments  he 
pleases.  The  Senate  makes  no  attempt  to  control  these  ap- 
pointments. The  attitude  of  the  Senate  is  that  since  the  Presi- 
dent is  responsible  for  the  acts  of  his  cabinet  associates  in  the 
conduct  of  their  offices,  and  since  collectively  the  cabinet  is  a 
body  of  confidential  advisors  to  the  President,  he  should  have 
the  right  to  select  whomsoever  he  pleases.  Of  course,  if  the 
President  were  to  make  a  really  disreputable  or  ineligible  ap- 
pointment, the  Senate  would  undoubtedly  interfere. 

Although  the  members  of  the  House  of  Representatives  have 
no  constitutional  control  over  appointments,  the  Senators, 
in  general,  accord  to  the  members  of  the  House  the  right  to  pass 
upon  appointments  which  afTect  their  own  districts,  if  the  dis- 
tricts in  question  are  represented  by  members  of  the  President's 
own  party.  If  they  are  controlled  by  the  opposing  party,  then 
the  appointments  are  determined  by  the  Senators  of  the  State 
if  they  are  of  the  same  party  as  the  President.  When  both 
Senators  and  Representatives  are  of  the  opposite  party,  the 
President  is  expected  to  consult  with  the  leaders  of  his  own 
party  and  make  appointments  that  will  strengthen  the  party 
organization.  It  is  a  common  practice  for  the  entire  congres- 
sional delegation  of  a  State,  Senators  and  Representatives,  to 
confer  upon  questions  of  patronage  within  their  State,  the  Presi- 
dent being  expected  to  make  the  appointments  that  are  decided 
upon.  This  is  done  because  the  political  interests  of  those 
members  of  the  delegation  who  are  of  the  same  political  party 


62  COMPARATIVK    TRKE   GOVERXxMEXT 

are  for  the  most  part  identical.  Moreover,  the  Senators  are 
vitally  interested  in  the  appointments  that  are  made  in  the 
various  congressional  districts  by  the  Representatives.  They 
must  see  that  these  appointments  are  not  opposed  to  their  own 
personal  interests.  But  it  should  be  noted  again  that  the  e.xtent 
to  which  the  Senate  goes  in  its  attempts  to  control  appointments 
depends  a  good  deal  upon  the  kind  of  man  who  is  President. 

This  whole  question  of  patronage  is  one  that  is  very  vital  both 
to  the  political  parties  and  to  the  nation  at  large.  The  doctrine 
that  "  to  the  victors  belong  the  spoils  "  is  deeply  rooted  in  the 
national  life,  although  in  recent  years,  under  the  operations  of 
the  civil  service  law,  noteworthy  progress  toward  its  over- 
throw has  been  made.  The  tendency  to  emphasize  merit  rather 
than  party  or  personal  considerations  is  steadily  growing,  to  the 
great  benefit  of  the  government  service.  It  is  hardly  to  be 
expected,  however,  that  the  spoils  system  will  ever  be  com- 
pletely f  list  roved. 

The  Removal  of  Officers.  —  The  President's  power  of  removal 
is  also  a  matter  of  vital  concern.  The  Constitution  itself  gives 
no  power  of  removal  specifically  to  the  President.  The  only 
provision  of  the  Constitution  for  the  removal  of  officers  is  that 
which  establishes  the  process  of  impeachment,  and  in  this  the 
I'resident  has  no  part.  But  very  early  it  was  agreed  thai  this  is 
an  unsatisfactory  way  of  removing  officers,  particularly  lho.se 
of  minor  importance.  The  ciuestion  came  up  for  detailed  dis- 
cussion during  the  session  of  the  first  Congress  and  after  careful 
debate  the  right  of  the  President  to  remove  officers  that  he  had 
appointed  was  recognizee!.  In  general  the  view  was  accepted 
that  the  right  to  remove  is  inherent  in  the  right  to  appoint,  and 
that,  notwithstanding  the  failure  of  the  Constitution  to  make 
specific  mention  of  it,  the  right  of  removal  is  a  constitutional 
right  wliich  belongs  to  the  President.  The  power  of  the  Presi- 
dent to  remove  officers  whom  he  has  appointed  is  practically 
absolute,  except,  of  course,  in  the  case  of  judges  who  hold  office 
for  life  unrler  the  Constitution  and  can  Ite  rcmo\i(I  only  by  im- 
peachment. 

The  understanfling  reached  in  1789  as  to  the  President's  right 
of  removal  continued  without  change  until  1HO7  when  Congress, 
in  the  course  of  its  fjuarrcl  with  Presiflcnl  Johnson,  [)assed  the 
Tenure  of  Office  A(  I   which  provided  that    I  lie   President  must 


THE  PRESIDENT   AS   AN  EXECUTIVE  6^ 

obtain  the  consent  of  the  Senate  before  removals  could  be  made. 
The  right  of  the  President  to  suspend  officers,  during  the  recess 
of  the  Senate,  was  conceded,  but  this  must  be  done  only  for  good 
cause.  Two  years  later,  after  General  Grant  had  become  Presi- 
dent, the  law  was  modified  so  as  to  recognize  the  right  of  the 
President  to  suspend  officers  "  in  his  discretion."  But  nowhere 
in  this  law,  either  in  its  original  or  amended  form,  was  there  a 
definite  statement  or  indication  of  just  where  the  power  of 
removal  is  lodged.  In  1885,  after  President  Cleveland  came  into 
office,  difficulties  again  arose  between  the  Republican  Senate  and 
the  Democratic  President,  the  Senate  still  claiming  that  its 
assent  had  to  be  obtained  before  removals  could  be  made.  The 
President  stood  firm,  however,  and  the  Senate  finally  yielded. 
In  1887  an  act  was  passed  which  repealed  the  law  of  1867  and 
thus  recognized  again  the  full  right  of  the  President.  No  other 
attempt  has  been  made  by  Congress  to  question  the  authority  of 
the  President  and  it  seems  to  be  a  settled  policy  that  he  can  re- 
move at  will  any  officers  whom  he  appoints  except  judges,  and 
without  giving  causes  for  his  action.  The  constitutional  ques- 
tion involved  has  not  been  definitely  settled  by  the  Supreme 
Court,  but  the  power  of  the  President,  by  common  acceptance, 
is  beyond  question.  The  opinion  prevails  that  since  the  Presi- 
dent is  responsible  for  the  faithful  enforcement  of  the  laws  and 
for  the  manner  in  which  the  vast  administrative  work  of  the 
government  is  performed,  he  must  be  free  to  discharge  faithless 
or  incompetent  officials  without  interference. 

It  is  to  be  understood  that  what  has  been  said  concerning  the 
President's  power  of  removal  has  no  reference  to  officers  holding 
positions  under  the  protection  of  the  civil  service  law.  There  is 
a  large  number  of  civil  service  employees  who  hold  their  posi- 
tions as  the  result  of  competitive  examinations  prescribed  by 
the  Civil  Service  Commission,  acting  under  authority  conferred 
by  Congress,  and  who  cannot  be  removed  without  adequate 
cause.^  It  is  in  the  case  of  officers  appointed  directly  by  the 
President,  that  his  power  of  removal  is  without  restriction. 

The  Granting  of  Pardons.  —  The  President's  pardoning 
power  is  given  to  him  by  the  Constitution.  "  He  shall  have 
power  to  grant  reprieves  and  pardons  for  ofifences  against  the 
United  States,  except  in  cases  of  impeachment."     It  will  be 

'  Below,  p.   1 1  j. 


64  Cr)M?ARATT\F.    FREE    GOVERXMEXT 

noted  that  this  is  a  very  broad  grant  of  power.  In  fact,  in  the 
cases  in  which  the  President  may  act  at  all,  his  power  is  un- 
limited. His  pardoning  power  does  not  reach  to  the  States,  but 
is  confined  to  crimes  against  the  United  States.  With  respect 
to  these,  however,  the  President  is  free  to  act  as  he  pleases. 
There  are  no  restrictions  as  to  how  or  when  the  power  of  pardon 
shall  be  used.  At  any  time  after  an  offense  has  been  committed, 
whether  legal  proceedings  have  been  started  or  not,  the  Presi- 
dent may  act.  The  only  way  that  he  may  be  called  to  question 
for  an  abuse  of  the  pardoning  power  is  through  impeachment 
proceedings.  Congress  has  attempted  by  legislative  enactment 
to  restrict  the  President  in  regard  to  general  amnesties,  but  the 
Supreme  Court  has  held  that  this  is  an  invasion  of  the  President's 
rights.  During  the  Civil  War  it  was  demonstrated  that  the 
power  to  grant  reprieves  to  soldiers  convicted  by  court  martials 
is  a  power  of  vast  importance. 

The  President  and  Foreign  Relations.  —  One  of  the  greatest 
of  the  powers  possessed  b)-  the  President  is  that  which  gives 
him  practical  control  over  the  foreign  relations  of  the  United 
States.  He  is  not  absolute  in  this  control,  by  any  means,  because 
the  power  to  declare  war  has  been  given  to  Congress  and  his 
treaty-making  power  is  checked  by  the  requirement  that  treaties 
must  be  ratified  by  the  Senate.  But  aside  from  these  important 
restrictions  he  has  a  free  hand  and  practically  determines  the 
Nation's  foreign  policy.  The  peace  and  prosperity  of  the 
Nation  are  therefore  largely  in  his  charge.  It  is  a  heavy  re- 
sponsibility that  is  imposed  upon  the  PrcsicKiil  by  this  vast 
power. 

The  President's  authority  under  the  Constitution  is  not  con- 
tained in  a  single  j)rovision  but  is  found  in  several.  He  is 
charged  with  the  duty  of  receiving  ambassadors  and  other  jjublic 
ministers  from  foreign  countries;  he  is  given  power  to  appoint, 
with  the  advice  and  consent  of  the  Senate,  the  ambassadors, 
(jther  public  ministers,  and  consuls  of  the  United  States;  and 
he  is  given  the  power  to  make  treaties,  with  the  advice  and 
con.senl  of  the  Senate,  provided  two  thirds  of  the  Senators 
present  concur.  Moreover,  the  control  of  foreign  relations  is 
looked  upon  as  an  executive  function  and  since  in  the  President 
has  been  lodged  the  executive  power  of  the  Nation,  his  absolute 
control  over  foreign  affairs  nnist  be  recognized,  exce[)t  as  definite 


THE   PRESIDENT  AS   AN   EXECUTIVE  65 

limitations  have  been  prescribed  by  the  Constitution.     The  con- 
trol of  foreign  relations  is  thus  inherent  in  the  executive  office. 

It  is  convenient,  for  purposes  of  discussion,  to  divide  the 
President's  powers  in  this  regard  into  two  classes,  those  which 
relate  to  the  general  intercourse  of  the  United  States  with  other 
countries,  and  those  which  relate  to  the  formal  enactment  of 
treaties,  in  which  the  Senate  has  a  share.  Under  the  first  come 
all  communication  and  negotiation  with  other  nations.  In  this 
the  President  is  absolutely  supreme.  Neither  the  Senate  nor 
Congress  as  a  whole  has  any  restraint  upon  him.  He  is  the 
sole  organ  of  communication  between  the  United  States  and 
other  countries.  He  alone  receives  foreign  ministers  and  passes 
upon  their  credentials.  With  him  alone,  strictly  speaking,  do 
they  have  official  relations.  They  have  official  intercourse,  to 
be  sure,  with  the  Secretary  of  State,  but  the  latter  is  the  direct 
and  personal  organ  of  the  President. 

The  diplomatic  representatives  of  the  United  States  are 
directly  responsible  to  the  President  and  he  stands  responsible 
for  their  acts.  Their  instructions  are  from  him  and  all  of  their 
dealings  are  really  with  him,  through  the  Department  of  State. 
All  the  correspondence  and  negotiations  between  the  President, 
or  the  State  department,  and  the  diplomatic  representatives  of 
the  United  States  or  of  other  countries  are  usually  conducted 
in  secret  and  may  indefinitely  be  kept  secret  if  the  President 
considers  such  action  necessary  in  the  public  interest.  In  carry- 
ing on  these  negotiations  any  kind  of  policy  may  be  pursued 
that  he  may  wish  to  adopt.  Congress  cannot  control  him  in  any 
way.  The  President  does  not  have  the  power  to  declare  war, 
but  by  the  policy  he  pursues  he  may  force  the  Nation  into  such 
a  position  that  war  is  the  only  way  out,  and  thus  practically 
compel  Congress  to  make  the  formal  declaration.  Or  in  his 
dealings  with  another  nation  he  may  assume  a  position  which 
will  compel  that  nation  to  take  the  initiative  in  declaring  war 
and  thus  leave  Congress  no  choice  but  to  accept  the  challenge. 
The  President  by  his  foreign  policy  may  easily  entangle  the 
Nation  so  that  war  is  inevitable.  President  Polk  in  1846,  just 
preceding  the  Mexican  War,  ordered  the  United  States  troops 
into  disputed  territory  where  they  were  fired  upon  by  the 
Mexicans ;  Congress  acted  immediately,  saying  merely  that 
"  war  existed  by  the  act  of  the  Republic  of  Mexico." 
r 


66  COMPARATIVK   TREK   C.OVERXMENT 

Another  important  power  belongs  to  the  President  under  the 
provision  of  the  Constitution  which  confers  upon  him  the  sole 
right  to  receive  foreign  ministers.  That  is  the  power  to  give  or 
withhold  othcial  recognition  of  other  governments ;  and  that 
means  not  merely  governments  that  are  firmly  estabUshed,  but 
also  new  governments  that  are  trying  to  obtain  a  recognized 
standing  among  the  governments  of  the  world.  This  means 
that  to  the  President  has  been  given  the  power  to  pass  upon  the 
independence  of  states,  a  power  whose  exercise  may  influence 
profoundly  the  developments  of  world  history.  In  this,  as  in 
regard  to  communications  and  intercourse  with  other  nations, 
Congress  has  no  jiart.  The  President  has  "  the  absolute  and 
uncontrolled  and  uncontrollable  authority."  ' 

The  Treaty  Making  Function.  —  In  the  making  of  treaties 
the  President  is  restrained  by  the  Senate  which  must  give  its 
approval,  by  a  two-thirds  vote  of  the  Senators  i)resent,  before  a 
treaty  may  be  put  into  force.  The  peculiar  wording  of  the 
constitutional  provision  which  gives  to  the  Senate  its  right, 
"  by  and  with  the  advice  and  consent  of  the  Senate,"  has  given 
rise  to  a  great  deal  of  discussion  as  to  the  relative  parts  of  the 
Senate  and  the  President  in  the  treaty-making  function.  Re- 
spectable argument  may  be  and  has  been  advanced  in  support 
of  the  theory  that  the  Senate  shares  equally  with  the  President 
in  this  important  power  and  that  the  Senate  is  not  confined 
simply  to  a  decision  as  to  whether  it  will  ratif\'  a  treaty  that  has 
been  presented  to  it  by  the  ['resident,  merely  altering  it  more  or 
less  by  way  of  amendment,  but  that  it  has  the  right  also  to  par- 
ticipate with  the  President  in  the  formulation  of  the  treaty. 
This  view  denies  the  right  of  the  President  to  negotiate  or 
formulate  treaties  as  he  |)leases  without  ci)nsullation  with  the 
Senate.  He  must  seek  the  advice  of  the  Senate  in  the  framing  of 
a  treaty  as  well  as  its  consent  to  the  treaty's  adoption. 

Hut  this  is  not  the  view  of  the  ablest  constitutional  lawyers 
and  publicists.  The  theory  that  has  the  greatest  weight  of 
authority  is  that  the  President  is  absolutely  without  restriction 
in  the  negotiation  of  treaties  with  respect  to  all  questions  which 
may  i)r()|)erly  become  the  subject  matter  of  treaty  agreements. 
He  may  frame  a  treaty  with  any  other  nation  upon  any  proi)er 
subject  that  strikes  his  fancy,  in  any  way  he  j)leases,  antl  for 
'  Kcinsth.  "  KcaclinKs  on  Aroeritan  Federal  Government,"  p.  84. 


THE   PRESIDENT   AS   AN   EXECUTIVE  67 

any  proper  purpose,  without  consulting  the  Senate  or  any  other 
branch  of  the  government.  He  may  negotiate  as  many  of  these 
treaties  as  he  may  want  to,  if  he  can  persuade  other  nations  to 
join  with  him.  After  they  are  framed,  he  may  submit  them 
to  the  Senate  or  not,  just  as  he  pleases.  They  cannot  be  put  into 
operation  and  become  law,  of  course,  without  the  approval  of 
the  Senate,  but  as  to  what  treaties  shall  be  made  and  what  their 
purposes  shall  be,  the  President  alone  has  the  authority  to  decide. 
Neither  the  Senate  alone  nor  Congress  as  a  whole  can  control 
him  in  this  function.  The  President  must  take  the  initiative. 
Congress,  or  either  house  acting  separately,  may  pass  resolutions 
concerning  international  relations  containing  suggestions  as  to 
the  need  of  treaties  for  certain  purposes  and  what  their  content 
should  be,  but  such  acts  are  only  gratuitous  advice  and  are  in 
no  way  binding  upon  the  President.  He  can  accept  or  ignore 
them  as  he  wishes.  The  negotiation  of  a  treaty  belongs  ex- 
clusively to  him  because  he  alone  has  the  constitutional  right 
to  communicate  with  foreign  countries.  "  He  must  negotiate 
the  treaty,  make  all  the  stipulations,  determine  all  the  subject- 
matter,  and  then  submit  the  perfected  convention  to  the  Senate 
for  ratification  or  rejection.  They  must  take  his  finished  work 
and  approve  or  disapprove."  ^ 

The  right  of  the  Senate  to  amend  treaties,  however,  is  recog- 
nized. It  may  give  its  advice  in  the  form  of  amendments  or  it 
may  reject  the  treaty  entirely.  It  is  not  confined  to  a  vote  of 
Yes  or  No.  The  amendments  may  be  of  such  a  character  as  to 
make  the  treaty  fundamentally  different  from  the  one  submitted 
by  the  President.  The  President,  however,  is  under  no  obliga- 
tion to  accept  these  amendments.  He  is  free  to  accept  them  or 
not.  Even  if  the  Senate  ratifies  the  treaty  without  alteration, 
the  President  may  pocket  it  if  he  pleases  and  refuse  an  exchange 
of  ratifications  with  the  other  country.  This  power  docs  not 
belong  to  the  President  by  an  express  grant  of  the  Constitution, 
but  it  inheres  in  his  executive  authority  to  conduct  foreign 
relations. 

The  power  of  the  Senate  to  thwart  the  will  of  the  President 
with  regard  to  treaties  is  clear.  It  may  defeat  them  by  refusing 
ratification,  or  it  may  amend  them  so  that  in  their  amended 
forms  they  are  objectionable  to  the  President.     Both  actions 

'  Pomcroy,  "  Constitutional  Law,"  Sec.  673,  Third  Edition. 


68  COMPARATIVE    FREE    GOVERXMEXT 

have  repeatedly  been  taken.  It  is  obvious,  therefore,  that  the 
President,  in  the  negotiation  of  a  treaty,  may  find  it  desirable 
to  inform  the  Senate  as  to  what  he  intends  and  keep  it  informed 
as  to  what  is  beinc;  done.  He  is  entirely  free  to  ask  for  the  advice 
of  the  Senate  while  negotiations  are  pending  if  he  wishes  so  to 
do.  This  is  often  done  in  order  to  obtain  the  cooperation  of  the 
Senate  and  lessen  the  chances  of  a  rejection  of  the  treaty  when 
it  is  submitted  in  formal  manner  for  ratification.  It  is  good 
policy  for  the  President  to  keep  in  the  good  graces  of  the  Senate 
in  order  to  minimize  the  latter's  hostility  to  his  treaty  projects. 
This  is  usually  done  through  the  Senate's  Committee  on  Foreign 
Relations,  whose  chairman,  at  least,  is  frequently  consulted 
about  treaty  negotiations  and  kept  informed  as  to  the  progress 
of  events.  With  the  cooperation  of  this  important  committee 
the  chances  of  ratification  are  greatly  improved.  A  good  illus- 
tration of  the  way  in  which  a  President  may  obtain  this  co- 
operation was  furnished  by  President  McKiiilcy  when  he  ajv 
pointed  Senator  Davis,  chairman  of  the  Committee  on  Foreign 
Relations,  a  member  of  the  commission  to  negotiate  the  treaty 
of  peace  with  Spain  in  189S.  Senator  Davis,  having  helped  to 
prepare  the  treaty,  would  of  course  defend  it  in  the  Senate  and 
because  of  his  influence  as  chairman  of  the  Committee  on 
Foreign  Relations  would  be  able  to  render  valuable  assistance 
in  obtaining  its  ratification. 

At  times  the  House  of  Representatives  may  have  a  part  to 
play  in  connection  v^ith  treaties.  It  has  nothing  to  say  con- 
cerning either  the  negotiation  of  treaties  or  their  ratification, 
but  sometimes  treaties  contain  |)r()visions  that  involve  legisla- 
tion on  the  part  of  Congress  in  order  to  make  them  elTective. 
In  such  case  the  House  is  free  to  exercise  its  discretion  with 
regard  to  this  necessary  legislation.  The  treaty  may  involve 
the  approi)riation  of  money,  for  instance,  and  the  right  of  the 
House  to  withhold  the  ajjproprialion,  if  it  disa|)pr()ves  of  the 
purpose  for  which  the  money  is  to  be  spent,  seems  to  be  fairly 
well  establishefl.  The  House  as  a  political  branch  of  the  govern- 
ment may  exercise  its  di.scretion  upon  matters  of  legislation  that 
come  before  it.  The  Supreme  Court  has  recognized  this  right, 
as  is  shown  by  the  fjillowing  e.xdrpt  from  an  opinion  by  Chief 
Justice  Marshall:  "Our  Constitution  declares  a  treaty  to  be 
the  law  of  the  land.      It  is  cons(f|uently  to  be  regardecl  in  courts 


THE  PRESIDENT  AS   AN   EXECUTIVE  6g 

of  justice  as  equivalent  to  an  act  of  the  legislature,  whenever 
it  operates  of  itself  without  the  aid  of  any  legislative  provision. 
But  when  the  terms  of  the  stipulation  import  a  contract,  when 
either  of  the  parties  engages  to  perform  a  particular  act,  the 
treaty  addresses  itself  to  the  poHtical,  not  the  judicial  depart- 
ment, and  the  legislature  must  execute  the  contract  before  it  can 
become  a  rule  for  the  court."  ^ 

The  execution  of  treaties  is  left  to  the  President,  unless  they 
involve  acts  of  legislation  of  the  character  referred  to  by  the  Su- 
preme Court.  They  are  laws  just  Kke  the  acts  of  Congress,  and 
the  President  is  charged  with  the  enforcement  of  the  laws.  If 
treaties  are  in  conflict  with  the  acts  of  Congress,  the  rule  of  the 
court  seems  to  be  that  "  the  one  last  in  date  will  control,  pro- 
viding always  the  stipulation  of  the  treaty  is  self -executing."  - 
A  treaty  and  an  act  of  Congress  stand  on  the  same  footing. 

REFERENCES 

(For  References,  see  the  following  chapter.) 

'  Foster  v.  Neilson,  2  Peters  253  (1829). 

2  Whitney  v.  Robertson,  124  U.  S.  190  (1888). 


CHAPTER  VII 

The  President  and  Legislation 

The  President  is  a  legislator  as  well  as  an  executive ;  that  is, 
he  participates  in  the  legislative  function  in  a  number  of  ways 
and  often  to  such  an  extent  that  he  becomes  the  controlling  force 
in  determining  the  legislative  policy.  A  part  of  the  President's 
power  in  legislation  is  his  by  constitutional  provision,  but  a 
notable  j)art  of  it  is  of  the  extra-constitutional  type  which  has 
come  to  him  as  the  result  of  two  great  facts  or  developments. 

The  first  of  these  is  the  fact  that,  though  not  intended  by  the 
framers  of  the  Constitution,  the  President  has  become  directly 
responsible  to  the  people,  who  look  to  him,  not  simply  as  an 
executive,  but  as  leader  of  the  Nation  whose  duty  it  is  to  see 
that  the  [)0|)ular  will  is  carried  out  in  the  work  of  legislation  as 
well  as  in  that  of  administration.  The  President  is  the  only 
officer  in  the  government  who  is  directly  responsible  to  the  whole 
j)co[jle.  He  is  the  only  one  who  may  be  looked  upon  as  the  rep- 
resentative of  the  entire  Xation.  He  alone  may  l)e  considered 
as  the  spokesman  of  all  the  i)eople,  and,  therefore,  he  is  expected 
to  be  active  in  seeing  that  the  popular  will  is  embodied  in  the  laws 
of  the  land. 

The  second  fac  t  which  helps  explain  I  he  President's  share  in 
the  legislative  function  is  that  he  is  for  llu-  time  being  the  leader 
of  his  |)arty  and  is  i)ledged  to  see  that  tlie  i)arty  promises,  as 
contained  in  the  platform  upon  which  he  was  elected,  are  carried 
out.  This  almost  always  means  legislation  of  some  kind.  If 
his  party  in  Congress  fails  toad  inaciord  with  the  |)arty  |)ledges, 
the  President  himself  is  discredited.  Il<  in  |»art  is  held  re- 
s[)onsible  for  the  failure.  In  considering  tin-  legislative  activ- 
ities of  the  President  this  dual  capac  il\'  in  which  he  acts,  as 
leader  of  the  Nation  and  as  leader  of  his  ii.irty,  must  be  kept  in 
mind. 

The  lonstilntional  provisions  (overing  ihe   ("resident's  legis- 

70 


THE  PRESIDENT  AND  LEGISLATION  71 

lative  functions  are  brief.  He  is  required  to  give  to  Congress 
from  time  to  time  information  of  the  state  of  the  Union  and  to 
recommend  to  the  consideration  of  Congress  whatever  measures 
he  thinks  necessary  and  expedient.  He  is  also  given  the  right 
to  call  Congress  in  special  session  to  consider  legislation  that  he 
holds  to  be  imperative.  He  is  also  required  to  pass  upon  every 
bill  enacted  by  Congress  before  it  shall  become  a  law  and  is 
given  power  to  veto  bills  which  he  disapproves.  His  consti- 
tutional powers  may  be  considered,  then,  under  the  two  heads, 
the  power  to  recommend  and  the  power  to  veto. 

Recommendations  to  Congress.  —  Two  methods  have  been 
used  by  the  Presidents  in  making  recommendations  to  Congress. 
According  to  one,  the  President  in  person  attends  a  joint  meeting 
of  the  two  houses  of  Congress  and  reads  an  address  containing 
the  suggestions  he  wishes  to  make.  According  to  the  other,  he 
sends  to  each  house  of  Congress  a  written  message,  containing 
his  recommendations,  which  is  read  by  Senate  and  House  clerks 
to  those  members  who  are  willing  to  hear  it.  Presidents  Wash- 
ington and  John  Adams  delivered  their  messages  in  person,  but 
Jefferson  refused  to  follow  their  example  and  transmitted  to 
Congress  a  written  message.  From  iSoi  until  1913  the  practice 
begun  by  Jefferson  was  observed  without  a  break.  But  Presi- 
dent Wilson  in  the  latter  year  set  aside  the  tradition  of  over  a 
century,  and  followed  the  rule  begun  by  Washington  and  Adams. 

At  the  assembhng  of  Congress  in  December  of  each  year  the 
President,  in  one  of  the  ways  indicated,  submits  what  is  known 
as  his  annual  message.  When  delivered  by  the  President  in 
person  this  is  likely  to  be  rather  brief  and  to  deal  with  the  sub- 
jects of  legislation  suggested  in  rather  general  terms.  The 
written  message,  however,  as  it  usually  appears,  is  a  long  docu- 
ment, carefully  prepared,  which  is  based  on  information  that 
comes  from  the  various  departments  and  which  reviews  the 
governmental  conditions  in  the  Nation,  and  the  relations  which 
exist  with  other  countries.  It  contains,  as  a  rule,  many  sug- 
gestions as  to  needed  legislation  for  the  improvement  of  the 
government  service,  and  usually  a  somewhat  detailed  discus- 
sion of  the  one  or  more  pressing  political  problems  of  the  day 
upon  which  the  President  and  his  party  are  pledged  to  act.  This 
message  is  usually  sent  to  Congress  upon  the  second  day  of  its 
session  and  is  read  to  both  houses.     The  reading  is  a  perfunctory 


72  COMPARATIVE  FREE   GO\'ERNMENT 

proceeding,  as  a  rule,  members  giving  it  only  slight  attention 
and  preferring  to  study  it  at  their  leisure,  if  they  study  it  at  all. 
The  message  is  the  subject  of  more  or  less  discussion  in  the  news- 
papers of  the  country  and  serves  to  give  the  people  information 
concerning  governmental  attairs  and  the  policies  for  which  the 
President  intends  to  stand.  The  usefulness  of  the  message  now 
is  not  so  great  as  in  the  early  years  of  the  Republic  when  the 
means  of  transport  and  communication  were  so  crude,  but  its 
usefulness  is  by  no  means  gone.  It  is  still  of  distinct  educa- 
tional value.  Congress,  of  course,  is  not  obliged  to  give  heed  to 
what  the  President  suggests,  but  when  Congress  is  controlled  by 
the  President's  party  it  is  usually  inexpedient,  not  "  good 
politics,"  to  ignore  his  recommendations. 

The  President's  opportunity  to  suggest  legislation  is  not 
confined,  however,  to  the  regular  annual  message.  Special 
messages  dealing  with  one  or  more  topics  arc  frequently  sent  to 
Congress  or  delivered  i)ersonally  by  the  President.  Those 
relating  to  the  formulation  and  ratification  of  treaties  are  sent 
to  the  Senate  alone.  The  special  message  really  gives  the  Presi- 
dent a  better  chance  to  discuss  in  detail  specific  legislative  poli- 
cies, and  thus  to  influence  Congress,  than  does  the  annua!  mes- 
sage which  usually,  and  with  ai:>parent  necessity,  is  much  taken 
up  with  administrative  matters.  But  whether  the  recommen- 
dations contained  in  the  messages  are  adopted  i)v  Congress  and 
embodied  in  laws,  depends  ujwn  a  number  of  things.  "  The 
treatment  which  the  President's  recommendations  receive,  of 
course,  varies  according  to  circumstances.  I'hey  may  be 
accepted  because  Congress  feels  that  they  are  sound  in  principle 
or  because  there  is  an  eflective  demand  for  them  in  the  country  ; 
or  they  may  be  accepted  because  the  F'resident  l)y  his  party 
leadership  or  personal  favors  or  use  of  jjatronage  can  bring  the 
recjuisite  pressure  to  bear  on  Senators  and  Representatives  to 
secure  their  passage."  '  But  whether  accepted  immediately 
by  Congress  or  not,  they  serve  as  a  means  of  communication 
between  the  President  and  the  jK-opk-,  and  through  tlu-m  he  may 
lead  in  the  formation  of  a  public  opinion  that  will  demand 
definite  action  at  the  hands  of  Congress.  President  Roosevelt, 
I)articularly,  was  skillful  in  the  use  of  his  messages  to  stir  up 

'  Bcartl,  "  .American  (jovcmmcnl  and  I'ulitics,  "   New  and  Revised  Kditiun,  p. 

30I. 


THE   PRESIDENT  AND   LEGISLATION  73 

public  sentiment.  Likewise,  President  Wilson,  delivering  his 
messages  in  person,  has  been  effective  in  developing  widespread 
popular  support. 

The  President's  recommendations  occasionally  take  a  more 
definite  form  than  that  of  a  mere  suggestion  in  a  message. 
Occasionally  bills  are  prepared  under  his  general  direction  to  be 
presented  to  Congress.  This  does  not  happen  often  because 
Congress  is  likely  to  resent  the  action  of  the  President  as  being 
outside  his  powers  and  therefore  an  unwarranted  interference 
with  the  legislative  department.  There  is  no  provision  in  the 
Constitution  definitely  conferring  upon  the  President  the  right 
to  prepare  bills  and  have  them  introduced  into  Congress.  But 
on  the  other  hand,  there  is  no  provision  that  denies  him  that 
right.  So  it  may  be  assumed  that  he  is  not  transgressing  the 
Constitution  in  having  bills  drafted  with  a  view  to  their  intro- 
duction into  Congress.  He  cannot  introduce  them  directly,  but 
it  is  not  at  all  difficult  for  him  to  find  some  Senator  or  Repre- 
sentative who  will  stand  sponsor  for  his  bill  and  seek  to  force  it 
through  Congress.  There  are  objections  to  this  practice  on  the 
part  of  the  President,  but  it  has  been  done  a  number  of  times 
and  very  probably  will  become  more  common  in  the  future. 
It  is  certain  that  the  points  of  contact  between  the  executive 
and  legislative  departments  are  much  more  numerous  now  than 
in  the  beginning,  and  it  is  reasonable  to  assume  that  executive 
leadership  in  the  field  of  legislation  will  become  more  potent  in 
the  course  of  the  years  than  it  is  now.  It  is  natural  for  the 
executive  to  take  the  leadership  in  government,  for  it  is  in  the 
executive  that  such  leadership  naturally  rests.  The  unusual 
success  of  President  Wilson  in  directing  legislative  reform  in 
connection  with  such  great  acts  as  the  tariff  and  currency  laws 
of  1913  has  centered  attention  not  only  upon  the  President's 
legislative  powers,  but  also  upon  the  need  for  efficient  leadership 
such  as  only  a  strong  President  can  provide. 

The  Veto  Power  and  Its  Use.  —  The  veto  power  gives  to  the 
President  an  effective  legislative  weapon.  It  is  an  instrument 
by  which,  at  times,  he  can  force  his  will  upon  Congress.  The 
constitutional  provision  by  which  this  power  is  conferred  upon 
the  President  is  a  part  of  the  broader  provision  which  pre- 
scribes the  procedure  upon  bills  after  they  have  been  passed  by 
both  houses  of  Congress.     No  bill  can  become  a  law  unless  it  has 


74  COMP.\R.\TI\i:    FRKK   COVERNMENT 

been  presented  to  the  President  for  his  signature.'  If  hersigns 
it,  it  becomes  a  law.  If  he  disapproves  of  the  bill  and  refuses 
to  sign  it,  he  must  return  it,  together  with  a  statement  of  his 
objections,  to  the  house  in  which  it  originated,  where,  after  the 
objections  have  been  entered  upon  the  house  journal,  it  may  be 
reconsidered.  If  after  reconsideration  two  thirds  of  that  house 
agree  to  pass  the  bill  again,  notwithstanding  the  President's 
objections,  it  is  sent,  together  with  the  President's  statement, 
to  the  other  house  where  it  is  likewise  reconsidered  and,  if  ap- 
proved by  two  thirds  of  that  house,  it  becomes  a  law.  The  Con- 
stitution requires  that  in  both  houses  the  vote  to  pass  a  bill  over 
the  President's  veto  must  be  by  yeas  and  nays  and  the  names  of 
the  persons  voting  for  and  against  the  l)ill  must  be  recordetl  in  the 
journal  of  each  house  respectively.  If  a  bill  is  not  returned  by 
the  President  within  ten  days  (Sundays  excepted)  after  it  is 
presented  to  him,  it  becomes  a  law  just  as  if  he  had  signed  it. 
If,  however,  Congress  adjourns  before  ten  days  have  i)assed,  it 
does  not  become  a  law. 

Since  the  time  of  Andrew  Jackson  the  use  of  the  veto  by  the 
Presidents  has  dilTered  radically  from  the  original  intention. 
The  plan  of  the  constitution  makers  did  not  contemplate  the 
use  of  the  veto  to  defeat  bills  whose  jnirpose  the  President  merely 
disapproved  of,  but  wiiich  otherwise  were  unobjectionable. 
The  primary  purpose  of  the  veto  was  to  protect  the  Constitution 
and  the  executive  authority  against  inroads  i)n  the  part  of  Con- 
gress. In  the  worfls  of  Hamilton,  writing  in  The  Federal ist,- 
the  grant  of  the  veto  power  to  the  Presi<!enl  was  due  to  "  ilie 
propensity  of  the  legislative  department  to  intrude  upon  the 
rights,  and  to  absorb  the  powers  of  the  other  departments," 
and  to  the  "  insufllriency  of  a  mere  jiarchiiient  delineation  of  the 
boundaries  "  of  the  authority  of   the  (k|)artmenls.     Without 

'This  applies  also  l<>  joint  resolutions,  hut  coniurrcnl  resolutions  and  constitu- 
lion.ll  amenilmenls  need  not  he  presented  to  the  Presi<lent  for  his  signature.  Con- 
current resolutions  are  not  use<l  for  purposes  of  legislation,  hut  as  u  mcms  of  cx- 
prcssinK  fn<l.  principles,  or  the  oi)inions  and  pun>oses  of  the  two  houses.  The 
appointment  of  joint  committees,  for  instance,  is  authori/.e<l  hy  resolutions  of  this 
form.  Joint  resolutions,  however,  are  used  for  minor  leRislative  purixiscs  and  arc 
looked  upon  ofi  hills  vi  far  as  procedural  rc<|uircmcnts  are  concerned.  Special  ap- 
propriations for  minor  and  intidenlal  pur|»scs  are  sometimes  made  in  this  way. 
I'ormrrly  the  joint  resolution  was  used  for  the  ena<  tmcnl  of  general  IcKislalion,  hut 
this  practice  has  hecn  ahundoncd.     .Sec  House  Manual,  paragraphs  ,{Ko,  .^qo. 

»  No.  73. 


THE   PRESIDENT  AND   LEGISLATION  75 

a  negative  or  veto  of  some  kind,  either  absolute  or  qualified,  the 
executive  ' '  would  be  absolutely  unable  to  defend  himself  against 
the  depredations  "  of  the  legislative  branch  of  the  government. 
Therefore  "  the  primary  inducement  to  conferring  the  power  in 
question  upon  the  Executive,  is  to  enable  him  to  defend  himself ; 
the  secondary,  is  to  increase  the  chances  in  favor  of  the  com- 
munity against  the  passing  of  bad  laws,  through  haste,  inadvert- 
ence, or  design." 

The  early  Presidents  followed  the  constitutional  intention  and 
used  the  veto  sparingly.  Washington  vetoed  only  two  bills 
during  his  two  terms  in  the  presidency.  Down  to  1830  only 
seven  more  were  vetoed  by  his  successors.  The  attitude  of  the 
early  Presidents  was  that  the  policy-determining  function  had 
been  given  by  the  Constitution  to  Congress  and  the  President 
was  not  to  interfere  with  this  congressional  function  except  for 
clearly  defined  constitutional  reasons.  But  President  Jackson 
held  an  entirely  different  view  of  the  use  of  the  veto.^  His 
theory  was  that  the  President  must  share  the  responsibility  for 
legislation  with  Congress  and  that,  therefore,  he  is  free  to  veto 
bills  that  seem  to  him  of  doubtful  wisdom.  Jackson  used  the 
veto  freely  to  defeat  measures  that  were  contrary  to  his  personal 
views  or  his  party's  policy  as  he  understood  it.  His  position 
was  bitterly  denounced  by  his  poHtical  opponents,  but  from  that 
time  on  the  Presidents  have  uniformly  followed  the  Jacksonian 
theory.  The  extent  to  which  the  veto  has  been  used  is  indicated 
in  the  following  passage :  "  From  the  organization  of  the  govern- 
ment under  the  constitution  to  the  end  of  President  Cleveland's 
second  term,  the  number  of  bills  vetoed  was  about  five  hundred. 
Authorities  differ  slightly.  The  figures,  including  pocket  vetoes 
upon  which  messages  were  written  and  bills  informally  or 
irregularly  presented,  seem  to  be  four  hundred  and  ninety-seven, 
of  which  the  number  regularly  vetoed  appears  to  be  four  hundred 
and  eighty.  Two  hundred  and  sixty-five  of  these  were  private 
pension  bills,  of  which  five  were  vetoed  by  President  Grant  and 
the  remainder  by  President  Cleveland.  Of  private  bills,  other 
than  pension  bills,  seventy  were  vetoed  ;  of  local  or  special  bills, 
eighty-seven.  The  remainder,  seventy-five  in  number,  includ- 
ing bills  for  the  admission  of  states  into  the  union,  are  classified 
as  general  bills.     Of  these  seventy-five,  President  Washington 

^  Woodburn,  "The  .\merican  Republic,"  p.  i4g. 


76  COMPARATIM-:    IREE    (lUVERXMENT 

vetoed  two,  Madison  three,  Jackson  six,  Tyler  live,  Polk  one, 
Pierce  three,  Buchanan  three,  Lincoln  two,  Johnson  eighteen, 
Grant  nine,  Hayes  ten,  Arthur  three,  Cleveland  eight,  Benjamin 
Harrison  two.  Of  Presidents  who  served  full  terms,  John 
Adams,  Jefferson  and  John  (^uincy  Adams  did  not  use  the  veto, 
nor  did  W.  H.  Harrison,  Taylor,  Fillmore  or  Garfield."  '  The 
veto  has  been  freely  used  by  all  of  the  Presidents,  since  Cleve- 
land's second  administration,  McKinley,  Roosevelt,  Taft,  and 
Wilson.  McKinley  is  credited  with  at  least  fourteen  vetoes,  and 
Roosevelt  with  forty-two. 

It  is  important  to  note  that  public  opinion  supports  the  Presi- 
dents in  this  free  use  of  the  veto.  The  people  look  upon  the 
President,  regardless  of  constitutional  theories,  as  in  large  meas- 
ure directly  responsii)le  for  the  legislative  policy.  Tiu-y  place 
him  in  his  high  position  to  see  that  their  will  is  matle  effective. 
If  the  acts  of  Congress  are  contrary  to  thai  will  or  express  it 
inadequately,  it  is  his  business  to  inlerj")ose  the  \eto  to  prevent 
those  acts  from  becoming  laws.  In  the  ])ublic  mind  the  Presi- 
dent is  a  definite,  vital  part  of  the  lawmaking  department. 
He  is,  moreover,  the  one  direct  representative  of  all  the  people 
and  his  veto  power  is  simply  looked  upon  as  an  instrument  for 
the  execution  of  the  popular  will.- 

Experience  shows  that  the  veto  is  an  effective  instrument  in 
the  hands  of  the  President.  It  is  a  check  upon  Congress  which 
is  hard  to  overcome.  It  has  not  often  been  possible  to  pa.ss  bills 
over  the  President's  veto,  notwithstanding  iJie  fact  that   the 

'  Finlcy  and  Sanderson,  "  The  American  Executive  and  IC.xecutivc  Mcthcxis," 

p.   211. 

'  "  While  the  veto  power  has  had  an  a.stonishinR  development  in  this  countr>-,  the 
kindly  prcroRative  upon  which  it  was  modelled  has  dis;ip|>eared.  Neither  (leorRC 
III  nor  any  of  his  successors  ever  used  it.  There  is  no  instance  of  a  veto  from  the 
crown  upon  a  law  of  Parliament  since  Queen  .Vnne's  rei^n.  In  the  hands  of  the 
President,  who,  in  the  estimate  of  'The  Federalist,'  woidd  have  to  be  even  more 
cautious  in  exenisiiij?  this  (xjwer  ih.in  the  British  kin^,  it  is  in  rohust  operation. 
Either  monarchical  jireroRalive  has  found  a  more  congenial  soil  in  the  republic  than 
in  the  kinKdom  whose  vivereiRnty  was  thrown  off,  or  else  a  remarkable  transforma- 
tion ha.n  taken  place  in  the  constitution  of  the  presidency,  and  instead  of  an  embodi- 
ment of  prcroKative.  it  ha.s  become  a  representative  institution.  'I'he  history  of  the 
phases  of  the  development  of  the  veto  |K)wer  shows  that  the  latter  view  of  the  ca.sc 
is  certainly  the  true  one.  Jackson's  demo<ratii  instinit  correilly  infurmed  him  of 
the  Mjurte  of  his  fwwer  when  he  told  the  Senate  that  it  was  'a  body  not  directly 
amenable  to  the  |)cople, '  while  the  President  'is  the  direct  representative  of  the 
(icople,  cictted  by  the  |>eople,  and  resjKjnsiblc  to  ihcm.'"  —  Ford,  "Rise  and 
(irowth  of  American  Politicft,"  p.  iK6. 


THE   PRESIDENT   AND   LEGISLATION  77 

two-thirds  vote  that  is  required  to  overcome  a  veto  has  been 
construed  to  mean  simply  a  vote  of  two  thirds  of  the  members 
present  and  not  two  thirds  of  the  entire  membership.  No  bill 
was  passed  over  the  President's  veto  until  the  time  of  President 
Tyler  and  no  really  important  measure  was  thus  passed  before 
the  controversy  arose  between  Congress  and  President  John- 
son.^ The  influence  of  the  President  due  to  the  fact  that  he  is 
the  party  leader  is  an  important  factor  in  this  connection. 
There  must  be  a  wide  split  between  the  President  and  the  repre- 
sentatives of  his  party  in  Congress  before  a  sufficient  number  of 
them  will  oppose  him  so  actively  as  to  force  a  measure  through 
in  the  face  of  his  veto.  And  Congress  is  not  likely  to  be  so  over- 
whelmingly of  the  opposite  party  as  to  be  able  to  overcome  the 
veto  by  a  strict  party  vote. 

The  "  pocket  veto,"  of  which  mention  has  been  made,  is 
deserving  of  brief  consideration.  This  grows  out  of  the  provi- 
sion of  the  Constitution  to  the  effect  that  if  Congress  adjourns 
before  the  ten  days  allotted  to  the  President  for  passing  upon  a 
bill  have  expired,  the  unsigned  bill  shall  not  become  a  law.  Thus 
the  pocket  veto  can  occur  only  in  the  case  of  bills  that  are  sent 
to  the  President  in  the  closing  days  of  a  session  of  Congress.  If 
more  than  ten  days  intervene  between  the  time  he  receives  the 
bill  and  the  time  Congress  adjourns,  he  must  either  sign  it  or 
return  it  to  Congress  with  his  objections.  But  if  the  time  is  less 
than  ten  days,  he  can  simply  fail  to  sign,  if  the  measure  is  one 
that  he  wishes  to  defeat,  and  this  is  called  the  "  pocket  veto." 
No  reason  for  his  failure  to  sign  need  be  given.  Congress  cannot 
criticize  him  for  his  inaction  because  it  did  not  give  him  the  full 
constitutional  period  of  ten  days  in  which  to  consider  the  meas- 
ure. It  is  clear  that  the  pocket  veto  is  a  convenient  device  for  the 
President  when  he  wishes  to  defeat  measures  that  are  presented 
to  him  during  the  closing  days  of  a  session  without  taking  an  open 
stand  against  them.    Many  Dills  have  met  their  death  in  this  way. 

Extra-legal  Methods  of  Influencing  Legislation.  —  Much  of 
the  President's  activity  in  a  legislative  way,  under  present 
practices,  does  not  lie  within  the  bounds  of  the  Constitution. 
He  has  extra-constitutional  methods  of  influencing  the  course 
of  legislation  which,  from  the  standpoint  of  practical  results,  are 

'  Finley  and  Sanderson,  "The  American  Executive  and  Executive  Methods," 
p.  212. 


78  COMPARATIVF,    1  REE    GOVERXMENT 

quite  as  important  as  those  provided  for  him  in  the  Constitution. 
As  leader  of  the  dominant  party,  for  the  time  being,  he  holds  a 
strategic  position.  If  he  is  so  fortunate  as  to  have  the  rank  and 
file  of  his  party  a  unit  behind  him,  he  is  able  frequently  to  force 
Congress  to  do  his  bidding.  He  may  accomj^iish  this  by  making 
direct  appeals  to  the  people  and  thus  bring  the  full  force  of  public 
opinion  to  bear  upon  Congress.  He  may  do  it  by  convincing 
members  of  Congress  who  oppose  him  that  their  opposition,  if 
continued,  will  mean  their  own  political  ruin.  He  may  obtain 
the  legislation  he  wants  through  persuasion,  holding  conferences 
with  the  leaders  and  other  members  of  Congress  for  the  purpose 
of  bringing  them  into  line.  He  may  succeed  through  a  threat 
of  veto.  Or,  if  his  sense  of  propriety  permits,  he  may  accomplish 
his  purpose  by  the  use  of  patronage,  a  method  which  has  been 
found  to  be  at  times  extremely  efficacious.  Rewarding  friends 
and  punishing  enemies  by  the  bestowal  or  the  withholding  of 
federal  patronage  has  been  a  somewhat  common  practice, 
although  the  Presidents  have  been  unwilling  to  admit  it.  The 
number  of  offices  that  every  President  must  fill  by  appointment 
is  so  large,  and  the  need,  according  to  accepted  standards,  for 
every  Senator  and  Representative  to  control  his  proper  share  of 
the  appointments  is  so  great,  that  the  President  is  often  al)lc  to 
obtain  public  sup[)ort  of  his  policies  from  men  who,  in  pri\ate, 
bitterly  denounce  him,  and  seek  his  undoing. 

Some  of  these  extra-legal  methods  of  influencing  Congress 
are  plainly  inconsistent  with  the  spirit  of  the  Constitution 
and  the  spirit  of  free  government.  It  is  proper  for  the  President 
to  concern  himself  actively  with  questions  of  legislation,  but 
to  make  bargains  with  Senators  and  Representatives  that 
involve  the  distribution  of  patronage  and  promises  of  prefer- 
ment, is  not  a  legitimate  means  of  influencing  congressional 
action.  Its  usual  potency  only  emphasizes  its  t)l)jectionable  fea- 
tures. Some  of  the  methods  suggested,  however,  may  fittingly 
be  u.scd.  Direct  appeals  to  public  opinion  arc  salutary  and, 
if  the  President's  position  is  reasonable,  are  likely  to  be  elTective. 
A  well-developed  public  o|)ini()n  is,  after  all,  the  most  potent 
force  in  the  politics  of  a  free  state. 

The  i)osition  which  the  President  holds  with  regard  to  legis- 
lation is  not  a  definitely  fixed  position.  I  lis  activity  and  his 
influence  will  tlepend  in  large  p.irt   upon  his  own  personality, 


THE   PRESIDENT  AND   LEGISLATION  79 

and  his  convictions  as  to  his  constitutional  authority.  The 
President  who  believes  that  he  has  the  right,  and  that  it  is  his 
duty,  to  take  the  lead  in  the  formulation  of  legislative  policies 
will  find  abundant  means,  both  constitutional  and  extra-con- 
stitutional, to  make  his  leadership  effective.  And  in  doing  this 
he  need  not  violate  the  proprieties  nor  transgress  the  spirit 
of  the  Constitution.  The  following  from  Woodrow  Wilson, 
written  before  he  could  have  had  much  thought  of  ever  being 
President,  states  the  point  clearly :  "  Some  of  our  Presidents 
have  deliberately  held  themselves  off  from  using  the  full  power 
they  might  legitimately  have  used,  because  of  conscientious 
scruples,  because  they  were  more  theorists  than  statesmen. 
They  have  held  the  strict  literary  theory  of  the  Constitution, 
the  Whig  theory,  the  Newtonian  theory,  and  have  acted  as  if 
they  thought  that  Pennsylvania  Avenue  should  have  been  even 
longer  than  it  is;  that  there  should  be  no  intimate  communi- 
cation of  any  kind  between  the  Capitol  and  the  White  House ; 
that  the  President  as  a  man  was  no  more  at  liberty  to  lead  the 
houses  of  Congress  by  persuasion  than  he  was  at  liberty  as 
President  to  dominate  them  by  authority,  —  supposing  that 
he  had,  what  he  has  not,  authority  enough  to  dominate  them. 
But  the  makers  of  the  Constitution  were  not  enacting  Whig 
theory,  they  were  not  making  laws  with  the  expectation  that, 
not  the  laws  themselves,  but  their  opinions,  known  by  future 
historians  to  lie  back  of  them,  should  govern  the  constitutional 
action  of  the  country.  They  were  statesmen,  not  pedants, 
and  their  laws  are  sufficient  to  keep  us  to  the  paths  they  set 
us  upon.  The  President  is  at  liberty,  both  in  law  and  conscience, 
to  be  as  big  a  man  as  he  can.  His  capacity  will  set  the  limit ; 
and  if  Congress  be  overborne  by  him,  it  will  be  no  fault  of 
the  makers  of  the  Constitution,  —  it  will  be  from  no  lack  of 
constitutional  powers  on  its  part,  but  only  because  the  Presi- 
dent has  the  nation  behind  him,  and  Congress  has  not.  He 
has  no  means  of  compelling  Congress  except  through  public 
opinion.  .  .  .  The  personal  force  of  the  President  is  per- 
fectly constitutional  to  any  extent  to  which  he  chooses  to  exer- 
cise it,  and  it  is  by  the  clear  logic  of  our  constitutional  practice 
that  he  has  become  alike  the  leader  of  his  party  and  the  leader 
of  the  nation."  ^ 

'Wilson,  "Constitutional  Government  in  the  United  States,"  pp.  70-72. 


8o  COMPARATIVE   FREE   GOVERNMENT 


REFERENCES 

Beard.     American  Government  and  Politics,  Edition  1Q14,  Chap.  X. 

Beard.     Readini^s  on  American  Government  and  Polities,  Chap.  X. 

Bryce.     The  American  Commonuealtli,  Edition  1910,  Vol.  I,  Chaps.  VI,  VII, 

VIII. 
Fairlie.     National  Administration  of  the  United  States,  Chaps.  I,  II. 
FiNLEY  and  Sanderson.     The  American  E.xecntiit  and  Executive  Methods, 

Chaps.  X\',  XVII,  XIX. 
Reinsch.     Readings  on  American  Federal  Government,  Chaps.  I.  11,  III,  IV. 
The  Federalist,  Nos.  73  to  77  inclusive. 

Wilson.     Constitutional  Government  in  the  United  States,  Chap.  III. 
WooDBURN.     The  American  Republic,  Chap.  Ill,  pp.  142-104. 
Young.     The  New  American  Government  and  Its  Work,  Chap.  II. 


CHAPTER  VIII 

The  President's  Cabinet 

The  President's  cabinet  is  composed  of  the  heads  of  the  great 
executive  departments.  Its  members,  as  heads  of  departments, 
have  both  a  constitutional  and  a  legal  status,  but  the  cabinet, 
as  a  collective  body,  has  neither.  The  term  cabinet  is  not 
used  in  the  Constitution.  There  are  only  two  references  in  the 
Constitution  to  the  officers  who  are  members  of  the  cabinet. 
The  first  is  the  provision  which  gives  the  President  the  power 
to  require  the  opinion  in  writing  of  the  heads  of  executive  de- 
partments upon  any  subject  relating  to  their  respective  offices ; 
and  the  second  is  that  which  gives  to  Congress  the  right  to 
vest  in  the  heads  of  departments  the  power  to  appoint  inferior 
officers.  Nothing  is  said  in  the  Constitution  as  to  where  the 
power  to  create  the  executive  departments  shall  rest,  but  this 
power  has  always  been  claimed  and  exercised  by  Congress. 
So  each  of  the  executive  departments  is  the  result  of  an  act  of 
Congress.  No  one  of  them  is  definitely  the  creation  of  the 
Constitution  itself.  The  Constitution  seems  merely  to  take 
it  for  granted  that  executive  departments  would  be  established, 
for  it  was  manifest  that  the  President  himself  could  not  admin- 
ister the  national  government  in  all  of  its  details. 

As  to  the  collective  character  of  the  present-day  cabinet, 
there  was  apparently  no  thought  whatever  in  the  minds  of  the 
men  who  drafted  the  Constitution.^  It  was  recognized  that 
the  President  would  need  advisers,  but  it  was  generally  felt 
that  the  Senate,  which  by  the  Constitution  was  brought  into 
intimate  relations  with  the  President,  would  meet  that  need 
adequately.  The  implied  dut}^  of  the  heads  of  the  executive 
departments  was  simply  to  administer  their  departments  under 
the  President's  direction  and  control.     The  cabinet  as  a  col- 

•  Perhaps  Charles  Pinckney  is  to  be  excepted.  See  Learned,  "  The  President's 
Cabinet,"  pp.  go  ff. 

G  8l 


82  COMPARATIVE   FREE   GOVERNMENT 

lective  body,  therefore,  is  simply  the  product  of  custom.  It  is 
another  of  the  important  extra-legal  institutions  of  the  United 
States. 

The  practice,  on  the  part  of  the  President,  of  seeking  advice 
from  the  heads  of  departments  was  begun  very  early.  Wash- 
ington, indeed,  from  the  very  start,  looked  upon  these  officers 
as  his  confidential  advisers.  In  the  beginning  he  advised  with 
them  individually,  and  not  collectively,  as  if  they  constituted 
a  real  privy  council  to  the  President.  Soon,  however,  he  began 
to  invite  some  or  all  of  them  to  somewhat  formal  meetings  to 
consider  governmental  problems.  Before  1793  these  meetings 
were  irregular  in  point  of  time  and  procedure,  but  by  the  begin- 
ning of  1793  the  formal  cabinet  meeting  was  pretty  well  es- 
tablished.^ The  name  cabinet  was  not  at  first  applied  to 
the  President's  advisory  council,  but  soon  came  into  general 
use,  although  it  remained  unknown  to  the  formal  law  until 
1907.= 

The  Cabinet's  Relation  to  the  President.  —  The  relation 
which  the  cabinet  members  bear  to  the  President  should  be 
clearly  understood.  It  is  this  relation,  in  fact,  which  dilTer- 
entiates  the  President's  cabinet  from  the  cabinets  of  the  parlia- 
mentary governments  of  the  Old  World.  Cabinet  officers  in 
the  United  States  are  responsible  to  the  President  and  not 
primarily  to  Congress,  notwithstanding  the  fact  that  the  powers 
they  e.xercise  are  determined  by  Congress,  and  that  b}-  the  same 
authority  may  be  fixed  in  the  minutes!  detail  the  organization 
of  their  departments  and  the  procedure  that  must  be  followed. 

'Sec  article  by  Henry  B;irrctt  Learned,  in  Tin-  Aiiitricin  Poliliml  S<iiii<i-  Re- 
view, Vol.  3,  p.  32y. 

*"N<)t  only  was  n  definite  Council  now  set  apart  hy  the  President's  re|XMle<l 
summonses;  but  it  heKan  to  he  called  by  a  particular  name.  Madisijn,  Jefferson, 
and  Randolph  were  among  the  first  to  refer  to  the  Presi<ient's  council  as  the  Cabinet. 
Washington  did  not  employ  the  term,  his  customary  phrase  being  'the  Secretaries 
and  the  Attorney  (Jencral,'  or  'The  Heads  of  Departments  and  the  Attomcy- 
(icneral,'  with  such  variations  as  'the  Conlidential  oflicers  of  (iovemmenl,"  and 
'the  gentlemen  with  whom  I  usually  advise  on  these  occasions.'  Neither  did 
Hamilton  nd<»pt  the  name  Cabinet,  though  he  freely  employed  the  term  Ministers. 
In  Congrcsnional  uvigc  we  have  not  noted  the  name  earlier  than  the  spring  of  180O, 
when  the  changes  were  rung  on  it  in  a  caustic  debate  in  which  John  Randolph  figured. 
It  ap|>cars  in  a  res<ilulion  in  the  hous*-  of  representatives,  for  the  first  time,  wc  be- 
lieve, so  late  as  July,  iH/17.  And  it  remained  unknown  to  the  statutes,  until  it  ap- 
pcarcfl  in  the  (leneral  AjJjiroprialion  Act  of  I'ebruary  ib,  lyo?."  —  Hins<lale,  "A 
liistury  of  the  I'resiilent's  Cabinet, "  p.  15. 


THE   PRESIDENT'S   CABINET  S^ 

The  cabinet  officers  are  not  responsible  in  any  way  for  the  acts 
of  the  chief  executive,  the  President.  In  this  respect  they  hold 
a  fundamentally  different  position  from  that  of  the  cabinet 
ministers  in  England  where  each  is  responsible  for  the  acts  of 
the  nominal  executive,  the  king  or  queen.  The  President  is 
charged  by  the  Constitution  with  the  executive  function  and  is 
responsible  for  the  manner  in  which  that  function  is  discharged. 
But  he  must  act  through  the  heads  of  the  departments.  There- 
fore their  acts  are  his  acts.  He  profits  from  their  successes  and 
must  assume  the  responsibility  for  their  failures.  They  are 
appointed  by  him  and  because  of  his  responsibility  for  what 
they  do,  the  Senate  does  not  interfere  with  the  appointments 
that  he  makes.  It  is  held  that  he  is  entitled  to  have  whomso- 
ever he  pleases  as  his  confidential  advisers  and  as  heads  of  de- 
partments through  whom  he  must  act.  The  President  has 
full  practical  authority  over  them,  regardless  of  restrictions 
which  Congress  may  seek  to  establish.  This  authority  is 
shown  by  his  unquestioned  right  to  remove  them  whenever  he 
pleases  and  for  reasons  of  his  own.  This  power  to  dismiss 
cabinet  officers  from  the  government  service  has  been  used  with 
the  utmost  freedom,  although  only  in  a  few  instances  have  the 
dismissals  been  technically  removals.  "But  virtual  removals, 
couched  in  the  polite  phrases  of  resignation  and  acceptance, 
are  numerous,  probably  more  so  than  anybody  knows,  since 
there  may  well  be  cases,  in  which  retiring  Cabinet  officers  have 
succeeded  to  second  or  third  class  diplomatic  posts,  or  to  inferior 
judgeships,  without  knowledge  on  the  part  of  the  public  as  to 
whether  the  change  was  more  desired  by  Secretary  or  Presi- 
dent." ^  This  power  of  removal  assures  to  the  President  the 
power  of  direction.  This  is  true  practically,  regardless  of  the 
fact  that  from  the  standpoint  of  theory  there  is  no  clear  under- 
standing as  to  just  what  the  President's  power  of  direction  over 
administrative  officials  actually  is.  Attempts  have  been  made 
at  times  by  Congress  to  interfere  with  the  power  of  removal, 
but  without  success. 

The  work  of  the  members  of  the  cabinet  must  be  considered 

from  two  points  of  view ;   first,  as  that  of  individual  executive 

officers  charged  with   the  administration  of  the  departments 

over  which  they  have  been  placed,  and,  second,  as  that  of  a  col- 

'  Hinsdale,  "A  History  of  the  President's  Cabinet,"  p.  317. 


84  COMPARATT\K    FREK   OOVKRXMF.XT 

lective  body  of  advisers  to  the  President.  In  their  individual 
capacity  they  are  the  direct  agents  of  the  President  through 
whom  he  acts  in  the  discharge  of  his  executive  function.  In 
their  collective  capacity  they  assist  the  President  in  the  formu- 
lation of  governmental  and  party  policies.  The  relation  they 
bear  to  the  President  in  this  advisory  capacity  is  a  personal 
one,  recognized  neither  by  the  Constitution  nor  by  the  laws. 
Moreover,  this  relation  is  entirely  dependent  upon  the  Presi- 
dent's will.  He  need  not  seek  the  advice  of  his  cabinet, 
individually  or  collectively,  if  he  does  not  wish  to  do  so. 
Also,  he  need  not  accept  their  advice  if  he  prefers  some  other 
course  of  action.  The  responsibility  is  his  and  his  freedom  to 
act  according  to  his  judgment  is  unquestioned.  It  is  expected, 
however,  that  the  President  will  consult  with  the  cabinet,  and 
it  is  likely  that  he  will  be  influenced  materially  by  the  opinion 
of  his  cabinet  associates.  He  has  chosen  them  for  their  posi- 
tions because  he  has  confidence  in  their  judgment  upon  ques- 
tions of  policy  as  well  as  in  their  ability  to  discharge  their  ad- 
ministrative duties  efficiently.  It  would  hardly  be  expedient 
for  him,  as  a  rule,  to  ignore  their  advice.  The  questions  upon 
which  the  opinion  of  the  cabinet  as  a  whole  is  sought  are  natu- 
rally questions  of  general  policy,  the  special  problems  of  each 
dei)artment  being  considered  separately  by  the  President  and 
the  head  of  the  department. 

Regular  hours  are  set  by  the  White  House  rules  for  the  cabinet 
meetings,  although  special  meetings  may  be  called,  of  course, 
whenever  the  President  pleases.  These  meetings  are  formal,  in 
a  sense,  although  they  concern  no  one  but  the  President  and 
the  members  of  the  cabinet.  They  are  usually  secret  meetings 
and  no  formal  records  are  ke])t  of  what  is  done.  This  fact 
illustrates  the  personal,  unoflicial  character  of  the  relationship 
of  the  cabinet  in  its  collective  or  political  capacity  lo  the  Presi- 
dent. 

In  a  very  real  sense  the  cabiiut  collie  tixcly  is  a  ])arly  body, 
assisting  the  President  as  i)arty  Icadir,  although  the  cabinet 
is  not  a  part  of  the  formal  party  organization.  The  President 
must  at  all  times  consider  the  influence  of  his  acts  and  of  his 
policies  upon  the  interests  of  his  |)arl\-  and  it  is  the  business  of 
his  cabinet  advisers  to  help  him  sfccr  dear  of  j)arty  entangle- 
ments and  mistakes  whi(  li  iiia\    had  to  party  disaster.     It  is 


THE   PRESIDENT'S   CABINET  85 

not  possible  to  obtain  an  adequate  understanding  of  the  Presi- 
dent's work  without  keeping  in  mind  constantly  his  relation  to 
his  party.  As  party  leader  it  is  necessary  for  him  not  only  to 
keep  in  touch  with  public  sentiment  throughout  the  Nation, 
but  also,  by  one  means  or  another,  to  appeal  frequently  to  the 
people  in  order  to  promote  public  opinion  favorable  to  him  and 
his  policies.  Many  of  these  appeals  are  made  through  his 
messages  to  Congress  and  his  own  public  addresses.  Cabinet 
members,  however,  frequently  appear  before  the  public  as  the 
spokesmen  of  the  President,  outUning  administration  policies 
and  arguing  for  particular  measures  which  the  President  wishes 
to  induce  Congress  to  pass.  When  appearing  in  this  way  they 
are  looked  upon  as  the  personal  agents  of  the  President  in  his 
role  as  leader  of  his  party  and  political  leader  of  the  Nation. 
The  responsibility  for  what  they  say  concerning  controversial 
subjects  in  reality  belongs  to  him. 

Principles  Governing  the  Selection  of  a  Cabinet.  —  The  rela- 
tion that  exists  between  the  President  and  the  cabinet  and  the 
nature  of  its  function  as  a  political  body  are  clearly  indicated 
by  the  principles  which  usually  control  in  the  selection  of  cabinet 
members.  There  is  always  a  mixture  of  motives  revealed  in 
the  selection,  sometimes  one  being  more  prominent  and  some- 
times another,  depending  largely  upon  the  President's  own  pur- 
poses and  the  political  conditions  of  the  country. 

In  the  beginning  Washington  recognized  the  opposing  parties 
in  his  appointment  of  the  heads  of  departments.  Hamilton, 
the  real  leader  of  the  Federalists,  was  made  Secretary  of  the 
Treasury,  and  Jefferson,  the  leader  of  the  Democratic-Republi- 
cans, was  placed  at  the  head  of  the  State  department.  Wash- 
ington seemed  to  feel  that  the  conflicting  interests  of  the  Na- 
tion, as  indicated  by  the  opposing  political  parties,  should  be 
represented  and  balanced  in  the  new  government.  This  experi- 
ment was  far  from  successful,  however,  and  in  the  later  years 
of  his  administration,  Washington  definitely  committed  him- 
self to  the  policy  of  selecting  cabinet  members  who  were  of  the 
same  party  faitli,  and  who  would  consequently  be  likely  to 
work  together  harmoniously.  Since  that  time  the  cabinet  has 
been  essentially  a  party  body.  The  regular  rule  is  to  have  the 
cabinet  made  up  of  men  of  the  same  political  faith  as  the  Presi- 
dent, although  the  exigencies  of  politics  sometimes  demand  that 


86  COMPARATR'E   FREE   G(^VERXMEXT 

factions  within  the  President's  party  that  are  really  not  in 
svmpathy  with  him  be  given  representation.  The  result  of 
this  is  a  coalition  cabinet  made  up  of  men  representing  more  or 
less  antagonistic  elements  within  the  party.  Lincoln,  in  the 
formation  of  his  first  cabinet,  furnishes  a  noteworthy  illustra- 
tion of  this  factional  representation.  His  chief  competitors 
for  the  presidential  nomination,  and  therefore  the  leaders  of 
the  various  factions  within  the  then  new  Republican  party 
were  given  seats  at  the  cabinet  table.  This  policy,  on  the  part 
of  Lincoln,  was  necessary  in  order  to  promote  harmony  among 
the  supporters  of  the  Union,  but  it  was  a  difficult  policy,  and  it 
was  only  Lincoln's  tactful  ability  to  handle  men  that  made  it 
successful.  Other  Presidents  have  fallen  far  short  of  Lincoln's 
achievement.  It  is  usually  the  President's  purpose  to  lind  men 
who  are  not  only  members  of  his  own  party,  but  who  are  also, 
in  most  respects,  in  complete  accord  with  his  own  policies.  The 
result  of  this  practice  has  usually  been  the  selection  of  men  who 
have  attained  recognized  standing  as  party  leaders  in  the  Na- 
tion. There  is  a  tendency  in  recent  years,  however,  to  break 
away  to  some  degree  from  this  rule.  The  Presidents  now  apjiear 
to  feel  more  free  to  appoint  men  to  the  cabinet  in  whom  they 
have  personal  confidence,  whether  these  men  have  been  con- 
sidered party  leaders  or  not.  Li  other  words,  a  greater  em- 
phasis is  now  placed  upon  the  function  of  the  cabinet  as  a  body 
of  i)ersonal  advisers  to  the  President  than  was  formerly  the 
case  when  the  cabinet  was  more  distinctively  a  body  of  party 
leaders  brought  together  for  the  purpose  of  administering  the 
government  according  to  the  party  program.  Also  there  is 
discernible  a  tendency  to  place  increasing  emphasis  ujjon  the 
functicjn  of  cabinet  members  as  administrati\'e  officers  and 
minimize  their  function  as  purely  |)olilical  officers.  The  char- 
acter of  the  cabinet  as  a  party  body  is  not  likely  to  (iisa])|)ear, 
however,  although  its  relationship  to  the  President  may  possibly 
become  even  more  personal  than  it  is  now. 

In  the  formation  of  a  cabinet,  geogra|)hi(al  considerations 
are  usually  given  great  weight.  The  i'ri-sidi'nt,  as  a  rule,  at- 
tempts to  balance  Stale  and  sectional  interests  so  that  no  one 
State  or  section  will  have  a  preponderating  inlluence  in  the 
administration.  Hut  here  again  the  rule  is  by  no  means  abso- 
lute.    '1  he  practice  of  balancing  the  .sections  is  rather  (arefully 


THE   PRESIDENT'S   CABINET  87 

observed,  but  in  recent  years  it  has  been  not  infrequent  for  a 
single  State  to  have  two  representatives  in  the  cabinet.  Under 
President  Roosevelt,  indeed,  New  York  for  a  time  had  three 
representatives  as  well  as  the  presidency  itself.  Since  the  time 
of  President  Cleveland's  first  cabinet  it  has  been  common  for 
the  Presidents  to  give  two  cabinet  appointments  to  a  single 
State.  The  President  is,  of  course,  after  the  man  whom  he 
considers  best  fitted  for  the  particular  work  in  mind  and  it  is 
not  always  possible  to  find  the  right  man  in  the  State  which 
he  might  wish  to  recognize  by  a  cabinet  appointment.  Sec- 
tional considerations,  however,  are  never  overlooked.  There  is 
too  much  at  stake,  in  a  personal  and  party  way,  for  the  Pres- 
ident to  ignore  the  conflicting  interests,  fancied  or  real,  between 
East  and  West,  North  and  South.  He  must  have  a  following 
in  all  sections  and  in  all  States  if  his  administration  is  to  be  of 
the  highest  success.  The  practice  of  giving  consideration  to 
the  geographical  distribution  of  cabinet  members  began  with 
Washington  and  has  been  more  or  less  strictly  adhered  to  by  all 
of  the  Presidents  since.  The  nation  expects  this,  and  trouble 
would  certainly  follow  for  the  President  who  ignored  it  com- 
pletely and  picked  his  cabinet  associates  from  a  single  section. 

Another  question  of  great  practical  importance  which  the 
President  must  take  note  of  in  the  formation  of  his  cabinet  is 
whether  or  not  he  shall  give  any  of  the  places  to  members  of 
Congress.  The  President  must  work  with  and  through  Congress 
for  the  accomplishment  of  his  purposes,  and  his  chances  of 
success  are  much  improved  if  he  has  in  his  cabinet  men  who 
have  been  leaders  in  Congress.  This  is  particularly  true  in 
case  the  President  himself  has  not  had  congressional  experience. 
If  he  has  among  his  advisers  men  who  understand  thoroughly 
the  intricacies  of  congressional  procedure  and  the  influences 
which  are  effective  in  the  work  of  legislation,  he  is  much  more 
likely  to  obtain  from  Congress  what  he  wants  than  he  other- 
wise would  be.  Consequently  there  will  usually  be  found  in 
the  cabinet  men  who  have  had  congressional  experience.  Par- 
ticularly are  Senators  likely  to  be  called  upon  to  accept  positions 
in  the  cabinet ;  members  of  the  House  of  Representatives  are 
less  frequently  taken  into  the  President's  official  family.  This 
is  doubtless  due  to  a  number  of  reasons.  Senators  are  usually 
men  of  larger  abilities  and  longer  political  experience  than  are 


88  COMPARATRi:    FREE   GOVERXMEXT 

members  of  the  lower  house,  although  this  is  by  no  means 
always  the  case.  Moreover,  the  President  is  more  directly 
dependent  upon  the  Senate  because  of  the  latter's  control  over 
appointments  and  its  share  in  the  treaty-making  power.  If 
the  Senate  is  antagonistic  to  the  President,  he  may  be  defeated 
in  the  attainment  of  his  most  cherished  purposes.  With  men 
in  the  cabinet,  however,  who  have  been  prominent  in  the  work 
of  the  Senate,  he  is  in  a  much  more  favorable  position  for  bring- 
ing influences  to  bear  which  will  induce  the  Senate  to  yield  to 
his  desires.  Presidents  have  not  always  been  successful  in 
persuading  Senators  to  give  up  their  places  in  the  Senate  for 
positions  in  the  cabinet.  Many  men  prefer  the  legislative 
work  of  the  Senate  to  the  administrative  duties  of  the  cabinet. 
But  it  is  worth  while  to  remember  that  even  the  offer  of  a  cabinet 
position  to  a  Senator  is  conducive  to  friendly  relations  between 
him,  and  consequently  his  associates  in  the  Senate,  and  the 
President.     The  value  of  such  friendly  relations  is  obvious. 

Sources  of  Cabinet  Material. —  There  is  no  one  special  branch 
of  the  government  service  which  may  be  looked  upon  as  a 
training  school  for  cabinet  positions.  Congress  usually  furnishes 
one  or  more  of  the  cabinet  members,  but  the  President  must 
find  the  men  whom  he  considers  suitable  where  he  can.  From 
the  very  start,  as  already  shown,  the  leaders  of  the  President's 
party  who  are  of  national  standing  have  fri'(iuiiitly  been  drafted 
for  cabinet  service.  The  appointment  of  such  leaders  may  or 
may  not  tend  toward  real  harmony  within  the  administration 
and  the  i)arty.  The  outcome  depends  largely  Uj)on  the  charac- 
ters and  ambitions  of  the.se  leaders  and  upon  the  President's 
hold  upon  the  public  confidence.  The  President  who  has  the 
people  back  of  him  can  usually  force  his  will  upon  his  as.sociates 
anrj  at  least  maintain  the  api)earance  of  harmony.  Many  of 
the  cabinet  members,  however,  do  not  come  from  the  acti\e 
party  leaders,  but  from  the  ranks  of  successful  business  and  pro- 
fessional men  who,  because  of  their  training  and  experience, 
arc  considered  filli-d  for  these  high  governmi-nlal  positions. 

The  President  is  under  no  restraints  whatever  in  making  his 
selection,  and  lheapf)ointmenls  of  recent  years  show  that  there 
is  a  tendency  to  look  for  cabinet  material  among  men  who  have 
had  a  successful  experience  in  the  conduct  of  large  business 
undertakings.     In    the    legal    |)rofession,    also,    many    cabinet 


THE  PRESIDENT'S   CABINET  89 

members  have  been  found.  A  knowledge  of  the  principles  and 
the  technique  of  the  law,  though  not  in  itself  sufficient  to  insure 
efficiency  in  administration,  manifestly  may  be  of  great  help 
to  those  who  must  execute  the  laws.  The  legal  profession  has 
always  been  liberally  represented  in  the  cabinet.  The  diplo- 
matic service,  also,  has  furnished  a  number  of  cabinet  appointees. 
The  training  gained  in  this  service  is  particularly  important  for 
the  work  of  the  State  department.  Of  equal  importance  with 
these  others  as  a  source  of  cabinet  material  must  be  mentioned 
the  governorships  of  the  States.  The  administrative  experience 
of  the  governors  is  often  of  such  a  character  as  to  fit  them  ad- 
mirably for  service  as  heads  of  the  great  executive  departments. 
Moreover,  their  successful  careers  in  the  practical  politics  of 
their  States  give  them  an  understanding  of  party  problems  and 
methods  which  may  prove  of  very  great  benefit  to  the  President. 
The  result  is  that  ex-governors  are  frequently  found  in  cabinet 
positions.  Sometimes,  also,  appointment  to  specific  places 
comes  by  way  of  promotion  within  the  cabinet  itself.  Some  of 
the  departments,  such  as  the  State  and  Treasury  departments, 
are  considered  of  higher  rank  than  others,  and  it  not  infre- 
quently happens  that  Secretaries  are  transferred  from  some  of 
the  lower  to  higher  positions,  the  ranking  or  gradation  of  the 
departments  in  the  main  being  determined  by  the  order  of  their 
establishment. 

It  is  clear  from  this  brief  enumeration  of  the  chief  sources 
from  which  cabinet  members  are  drawn  that  the  President  is 
not  limited  in  his  selection  to  any  one  class  or  profession.  He 
has  all  of  his  fellow-citizens  from  whom  to  choose.  He  is  free, 
if  he  wishes,  to  be  guided  by  his  own  judgment.  His  motives 
are  known  to  himself  alone.  He  has  the  interests  of  his  party 
and  the  interests  of  the  nation,  as  well  as  his  own  personal 
fortunes  to  conserve.  Just  how  he  shall  do  this,  as  far  as  cabinet 
appointments  are  concerned,  is  for  him  alone  to  say. 

The  Cabinet's  Relation  to  Congress.  —  Notwithstanding  the 
direct  responsibility  of  the  department  heads  to  the  President, 
they  hold  a  close  and  somewhat  peculiar  relation  to  Congress. 
Their  right  to  be  is  casually  recognized  by  the  Constitution,  as 
before  stated,  but  they  do  not  hold  ofHce  by  reason  of  a  specific 
constitutional  provision.^    The  departments  over  which  they 

•Above,  p.  81. 


90  COMPARATIVE   FREE  GOVERNMENT 

preside  have  been  created  by  acts  of  Congress,  and  it  was  from 
Congress  that  the  authority  they  exercise  was  derived.'  The 
control  of  Congress  over  the  organization  of  the  departments 
is  complete.  New  departments  may  be  created,  old  depart- 
ments may  be  reorganized  or  abolished,  their  powers  may  be 
increased  or  diminished,  as  Congress  sees  fit.  The  detailed 
procedure  to  be  followed  by  the  departments  may  be  fixed  by 
statute.  Of  course  the  President  might  intervene  with  his 
veto  if  the  proposals  of  Congress  were  objectionable  to  him,  but 
the  veto  could  be  overcome  if  Congress  were  determined  to 
enforce  its  will.  According  to  the  theory  of  the  Constitution, 
the  legislature  is  not  to  control  the  executive,  but  it  should  be 
noted  that  the  power  of  Congress  over  the  executive  depart- 
ments, and  therefore  over  the  agencies  through  which  the  Pres- 
ident must  work,  is  so  great  that  the  actual  exercise  of  the 
executive  authority  may  in  large  measure  be  regulated  by  legis- 
lative action.  This  power  of  regulation  is  not  confined,  how- 
ever, to  a  control  over  the  organization  and  procedure  of  the 
departments.  Congress  has  other  means  of  exerting  influence 
upon  the  activities  of  the  executive  branch,  the  use  of  wiiich 
brings  it  into  close  relationship  with  the  departments. 

Full  power  of  direction  by  the  President  over  the  departments 
has  never  been  conceded  by  Congress  and  frequently  attempts 
are  made,  by  one  process  or  another,  to  control  the  executive 
heads  in  some  of  their  activities.  This  is  done  in  spile  of  the 
fact  that  Congress  has  definitely  recognized  the  President's 
power  of  removal  in  which  the  power  to  direct  is  inherent. 
That  Congress  can  effectively  restrain  executive  action  is 
unquestioned.  One  of  the  important  means  of  accomplishing 
this  is  through  its  control  over  appropriations.  The  President 
and  all  branches  of  the  executive  authority  are  dependent  upon 
Congress  for  the  funds  with  which  to  do  their  work.  The  execu- 
tive is  thus  helj)lcss  without  the  aid  of  Congress.  'Hie  work  of 
all  of  the  de|)artments,  or  of  any  particular  department,  may 
be  curtailed  anrl  limited  by  the  refusal  of  Congress  to  grant  the 
needed  supi)lies.  In  this  way  Congress  may,  if  it  wishes  to 
assert  itself,  practically  dictate  the  policy  of  a  dc|)artment. 
Technically  the  President  is  responsible  for  the  work  of  each 
department,  but  his  hands  may  be  so  lit-fl  by  congressional 

'  Contrast  with  French  cabinet,  Chap.  XLVII. 


THE   PRESIDENT'S   CABINET 


91 


action  that  there  is  only  one  course  of  action  open  to  him. 
Congress  does  not  attempt  in  this  extreme  manner  to  dictate 
executive  action,  but  that  it  may  do  so,  if  it  wishes,  is  a  fact  of 
vital  significance.  The  departments  are  regularly  consulted 
about  appropriations  for  their  support,  but  the  estimates  sub- 
mitted by  the  departments  are  in  no  way  binding  upon  Congress ; 
they  may  or  may  not  be  followed.  Items  may  be  included  in  the 
appropriation  acts,  indeed,  which  are  openly  disapproved  of  by 
the  department  heads,  as,  for  instance,  in  connection  with 
river  and  harbor  improvements  and  the  free  distribution  of 
seeds  by  the  Department  of  Agriculture.  Attention  has  already 
been  called  to  the  fact  that  the  House  of  Representatives,  by 
refusing  to  appropriate  the  necessary  funds,  may  prevent  the 
execution  of  a  treaty  which  has  been  negotiated  by  the  President 
and  formally  ratified  by  the  Senate. 

Another  means  by  which  Congress  influences  the  conduct  of 
the  departments  is  by  requiring  departmental  reports  which 
are  submitted  each  year  at  the  opening  of  Congress.  These 
reports  are  provided  for  by  the  statutes  and  contain  detailed 
information  concerning  the  working  of  the  departments.  More- 
over, frequent  requests  are  made  by  one  or  both  houses  of  Con- 
gress for  additional  or  special  information  upon  questions  in 
which  Congress  is  interested.  These  communications  are 
sometimes  in  the  form  of  requests  and  sometimes  in  the  form 
of  demands.  The  President,  or  the  Secretary  immediately  con- 
cerned, under  direction  of  the  President,  need  not  comply  with 
the  request  if  he  does  not  wish  to  do  so ;  Congress  has  no  way 
to  compel  him  to  furnish  the  desired  data.  But  through  these 
requests  Congress  obtains  a  great  deal  of  information  concern- 
ing both  policies  and  methods  of  administration  which  is  of 
material  assistance  in  enacting  legislation  for  the  departments. 
These  requests  are  not  always  prompted  by  disinterested 
motives ;  they  are  frequently  designed  to  promote  the  interests 
of  the  party  opposed  to  the  President  by  forcing  him  to  reveal 
facts  which  are  considered  detrimental  to  the  administration. 
Usually,  however,  they  are  the  result  of  a  desire  for  information 
which  is  thought  to  be  important  and  which  it  is  the  right  of 
Congress  to  have.  The  resultant  publicity  is  often  salutary 
in  its  effects. 

Formal    investigations    furnish    another    method    bv    which 


92  coMrAi^\'n\i-:  free  c,o\ernmext 

Congress  may  bring  pressure  to  bear  upon  the  President  or 
upon  any  particular  administrative  officer.  The  conduct  of  a 
department  may  be  examined  critically  in  this  way  by  an  inves- 
tigating committee  of  Congress  that  has  power  to  summon 
witnesses,  take  testimony,  collect  documents  and  obtain  all  of 
the  information  that  it  can.  Heads  of  departments  cannot  be 
compelled  to  appear  and  give  testimony,  but  they  usually  do 
appear  in  response  to  the  committee's  invitation  and  give  the 
information  that  is  sought,  if  it  seems  projicr  for  them  to  do  so. 
Investigations  of  this  kind  sometimes  have  a  far-reaching  etlect 
upon  the  policies  of  the  nation,  as  was  the  case  in  the  investi- 
gation into  the  conduct  of  the  Interior  Department  under 
Secretary  Ballinger  in  1910,  concerning  the  administration  of 
the  public  land  laws  and  the  government's  conservation  policy. 
Wide  publicity  is  naturally  given  to  the  results  of  such  investi- 
gations and  not  only  the  attitude  of  Congress,  but  also  the 
opinion  of  the  people  at  large  may  be  determined  by  them. 
The  possibility  of  an  investigation  of  this  kind  beyond  doubt 
has  a  decided  restraining  influence  upon  administrative  officers. 
It  tends  to  make  them  attentive  to  the  demands  of  Congress, 
and  so  strengthens  the  directive  power  of  Congress  over  them. 

The  power  of  impeachment  gives  to  Congress  an  additional 
means  of  control,  but  not  a  very  satisfactory  one  as  far  as  the 
ordinary  working  of  the  departments  is  concerned.  This  power 
belongs  to  Congress  by  constitutional  grant.  Impeachment 
proceedings  may  be  brought  against  the  President,  Vice  Pres- 
ident, and  all  civil  officers  of  the  United  Stales  on  charges  of 
"  treason,  bribery,  or  other  high  crimes  and  misdemeanors." 
It  is  plain  that  the  impeachment  process  can  be  emjiloyed  only 
in  case  of  serious  misconduct  on  the  part  of  the  accused  officer 
anfl  that  it  does  not  furnish  to  Congress  a  serviceable  agency 
for  the  control  of  ordinary  administrative  activities.  Bryce 
aptly  says  that  it  is  the  "  heaviest  piece  of  artillery  in  the  con- 
gressional arsenal,  but  because  it  is  so  heavy  ^Jl  ''^  unf\[  for 
ordinary  use.  It  is  like  a  hundred-ton  gun  which  needs  com- 
plex machinery  to  bring  it  into  position,  an  enormous  charge  of 
powder  to  fire  it,  and  a  large  mark  to  aim  at."  '  Although  it  is 
a  powerful  check  upon  the  executive  power  and  may  at  limes  be 

'  Brycc,  "The  American  Curamun wealth,"  New  and  Revised  Edition,  Vol.  I,  p. 
212. 


THE  PRESIDENT'S  CABINET  93 

employed,  it  is  practically  worthless  as  a  means  of  directing 
administrative  policies.  Without  its  mention,  however,  any 
statement  concerning  congressional  control  over  executive 
officers  would  be  incomplete. 

Under  the  practice  that  has  grown  up  members  of  the  cabinet 
do  not  speak  in  Congress  or  take  direct  part  in  any  way  in  its 
sessions.  This  is  a  matter  of  custom  and  not  of  constitutional 
provision.  According  to  the  Constitution,  no  person  holding 
any  office  under  the  United  States  may  be  a  member  of  Congress 
during  his  continuance  in  office,  but  this  provision  does  not 
forbid  the  heads  of  departments  to  appear  in  Congress  and  speak 
upon  questions  under  consideration.  Whether  they  shall  have 
this  privilege  rests  with  Congress,  and  Congress  has  not  chosen 
to  grant  it  to  them.  Several  attempts  have  been  made,  at  dif- 
ferent times,  to  induce  Congress  to  admit  cabinet  officers  to 
debates  upon  questions  relating  to  their  respective  departments, 
but  without  success.  In  the  beginning,  when  this  custom  could 
easily  have  been  established,  Congress  was  too  fearful  of  ex- 
ecutive encroachments  upon  its  power  to  permit  the  heads  of 
departments  to  appear  in  either  house  for  the  purpose  of  taking 
part  in  the  discussions.  It  has  not  seen  fit  to  change  its  attitude, 
notwithstanding  the  rather  widespread  belief  that  benefits 
would  accrue  to  the  Nation  from  a  closer  relation  between  Con- 
gress and  the  executive  departments  in  matters  of  legislation. 
There  is  no  present  indication  that  Congress  is  likely  to  change 
its  attitude,  although  it  is  plainly  manifest  that  executive  leader- 
ship is  rapidly  gaining  in  influence  and  recognition  in  the  de- 
termination of  legislative  policies.  If  the  actual  participation 
of  cabinet  officers  in  the  debates  of  Congress  were  the  only 
means  of  making  this  executive  leadership  effective,  it  is  not 
improbable  that  Congress  would  be  forced  to  modify  its  practice, 
but  other  ways  of  influencing  legislative  action  are  open  to  the 
executive  authorities. 

The  Cabinet  and  Legislation.  — ■  The  various  ways  in  which 
the  President  may  affect  legislation  have  already  been  described. 
It  remains  to  note  that  cabinet  officers  are  in  rather  close  re- 
lation to  legislative  work  through  their  dealings  with  members 
of  Congress  and  with  the  congressional  committees.  All 
members  of  Congress  have  a  good  deal  to  do  with  the  different 
departments  in  looking  after  the  interests  of  their  constituents 


94  C0MPARATI\1-:    FREE   GOVERNMENT 

and  in  the  discharge  of  their  legislative  duties,  and  it  is  usually 
desirable,  from  their  point  of  view,  to  be  on  friendly  terms  with 
the  department  heads.  They  may  wish,  for  instance,  to  obtain 
information  from  the  departments  in  preparation  for  their 
speeches  before  Congress  or  the  committees,  or  they  may  seek 
poUtical  appointments  for  their  friends ;  and  so,  for  these  and 
other  reasons,  are  likely  to  give  heed  to  cabinet  suggestions. 
Cabinet  members  are  men  of  both  political  and  social  iniluence, 
and  members  of  Congress  frequently  have  need  of  their  help. 
With  the  committees,  or  at  any  rate  the  chairmen  of  committees, 
that  have  to  do  with  problems  relating  to  their  respective  de- 
partments, cabinet  officers  are  in  frequent  consultation.  They 
have  no  right  to  demand  a  hearing  before  the  conmiittees,  and 
their  appearance  is  always  by  invitation,  but  it  is  hardly  prob- 
able that  a  request  for  a  hearing  would  be  denied.  Information 
which  they  have  is  needed  bv  the  committees.  Their  judgment 
concerning  legislation  alTecting  the  dei)arlments  is  usually  de- 
sired and  sought  by  the  committees.  So  that,  notwithstanding 
the  apparent  resentment  of  Congress  as  a  whole  and  of  its  com- 
mittees individually,  with  regard  to  what  is  called  executive 
interference,  there  is  recognition  that  to  a  considerable  extent 
the  committees  are  dependent  upon  the  department  oflicials. 
The  real  significance  of  this  is  understood  all  the  more  clearly 
when  it  is  remembered  that  the  bulk  of  the  work  of  Congress  is 
done  in  the  committee  rooms.  The  denial  by  Congress  of  the 
privilege  of  appearing  on  I  lie  lloor  of  the  houses  and  of  sharing 
in  the  formal  discussions  by  no  means  deprives  the  Secretaries 
of  efTective  contact  with  the  legislati\e  |)rocess.  Through  their 
influence  with  the  committees  they  play  a  valuable  part  in 
.shaping  legislation.  Their  relation  to  the  committees  is  entirely 
unoHicial,  but  it  takes  the  place,  in  no  small  degree,  of  that 
official  ministerial  leadership  which  characterizes  the  parliamen- 
tary governments,  and  is  a  vital  factor  in  the  harmoniz-alion  of 
the  legislative  and  executive  departments. 

In  the  discharge  of  their  duties  as  heads  of  departments 
cabinet  ofTiccrs  are  called  ujion  to  establish  many  departmental 
rules  and  regulations  that  have  the  force  of  law.  The  power 
they  exercise  in  this  is  ;i  dcjcg.itfcl  power,  liy  statute  the  head 
of  each  flepartmcnt  is  aulliori/.cd  to  "  prescribe  n-gulations,  not 
inconsistent   with  law,  for  the  government  of  Iiis  (icpartnient, 


THE   PRESIDENT'S   CABINET  95 

the  conduct  of  its  officers  and  clerks,  the  distribution  and  per- 
formance of  its  business,  and  the  custody,  use,  and  preservation 
of  the  records,  papers,  and  property  appertaining  to  it."  This 
is  an  important  power,  particularly  in  certain  departments,  to 
which  special  ordinance  powers  have  been  given,  as,  for  instance, 
the  Treasury  and  Post  Office  departments,  in  which  a  vast 
system  of  regulations  must  be  provided.  In  making  these 
regulations  the  department  heads  cannot  go  beyond  the  power 
delegated  to  them.  Within  the  hmits  set,  the  rules  thus  pre- 
scribed have  the  full  force  of  law  and  will  be  enforced  by  the 
courts.  Closely  allied  to  this  power  to  prescribe  regulations  is 
the  power  to  hear  cases  on  appeal  from  lower  administrative 
officers  and  to  render  final  decision. 

REFERENCES 

Bryce.     The  American  Coinmomvealth,  Edition  1910,  Vol.  I,  Chap.  IX. 
FiNLEY  and  Sanderson.     The  American  Executive  and  Executive  Methods, 

Chap.  XVI. 
Hinsdale.     A  History  of  the  President's  Cabinet,  pp.  1-16,  283-328. 
Learned.     The  President's  Cabinet,  Chaps.  II,  III,  IV,  V,  VI,  XIII. 


CHAPTER    IX 

The  National  Administr..\tion 

The  Nation's  administrative  work  is,  for  the  most  part,  under 
the  control  of  the  executive  departments,  of  which  there  are 
ten.  Those  in  charge,  usually  called  Secretaries,  are  apjwinted 
by  the  President,  and  are,  as  already  shown,  members  of  the 
President's  unofficial  cabinet.  Each  receives  an  annual  salary 
of  Si 2,000.  In  addition  to  the  regular  departments  there  are 
several  commissions,  to  be  described  later  in  this  chapter,  which 
are  of  the  very  highest  importance  and  whose  work  rivals  in  its 
magnitude  that  of  the  departments  themselves. 

The  department  is  the  largest  unit  of  administration  in  the 
national  goverimicnt  and  is  thoroughly  centrali/cd  in  its  organ- 
ization. It  is  di\i(k'd  into  a  nunilx-r  of  sniallc-r  administrative 
units  known  as  bureaus,  which,  in  turn,  are  frequently  subdivided 
into  still  smaller  parts  known  as  divisions.  In  charge  of  these 
divisions  are  officers  known  as  chiefs  of  divisions  who  arc  re- 
sponsible to  their  respective  bureau  chiefs,  who,  in  turn,  are 
responsible  to  the  Secretary  of  the  department.  Bureaus  are 
established  by  act  of  Congress  just  as  are  the  departments; 
divisions  and  the  smaller  units  may  be  established  by  executive 
order.  X'arious  names  are  applied  to  those  in  charge  of  the 
bureaus,  the  heads  of  the  most  important  bureaus  being  usually 
called  commissioners,  and  the  heads  of  the  less  important  ones 
being  designated  simply  chiefs  of  bureaus.  Each  Secretary  or 
head  of  the  de|)artment  has  one  or  more  assistants  usually  called 
assistant  secretaries.  These  officers  are  the  ones  with  whom  the 
Secretary  has  direct  dealings  and  to  whom  lie  looks  for  thi- 
execution  of  his  orders.  They  in  turn  act  through  the  bureau 
chiefs.  There  is  thus  a  gradation  or  hierarchy  of  ofiu  ials  cor- 
responfling  to  the  units  of  administration  into  whi(  h  the  de- 
I)artment  is  divided.  Many  minor  dilTerences  e.xisl  with  regard 
to  the  details  of  organization  in  the  various  departments,  but, 

90 


THE  NATIONAL  ADMINISTRATION  97 

in  the  main,  the  outline  suggested  holds  true  for  all.  The 
authority  of  the  department  centers  in  the  Secretary  who  is 
directly  responsible  to  the  President. 

At  the  beginning  Congress  established  only  three  regular 
departments,  —  State,  Treasury,  and  War.  These  were  created 
in  1789,  but  not  by  the  same  act  of  Congress.  The  State  de- 
partment, then  known  as  the  Department  of  Foreign  Affairs, 
was  the  first  to  be  established.  Then  followed  the  War  and 
Treasury  departments,  and  soon  after  the  office  of  Attorney- 
General  was  created.  The  latter  was  not  at  first  looked  upon  as 
a  department ;  in  fact,  it  was  not  so  recognized  until  1870  when 
the  Department  of  Justice  was  established,  although  almost 
from  the  beginning  it  took  rank  with  the  departments,  and  the 
Attorney-General  was  considered  a  member  of  the  President's 
cabinet.  The  other  departments,  established  as  the  need  de- 
manded, came  in  the  following  order:  Navy  in  1798,  Post  Office 
in  1829,  Interior  in  1849,  Agriculture  in  1889,  and  Commerce 
and  Labor  in  1903.  In  1913  the  last  was  divided  by  act  of 
Congress,  and  a  separate  Department  of  Labor  was  created. 
The  Post  Office  service,  with  a  Postmaster-General  at  the  head, 
was  established  by  the  first  Congress  in  1789,  but  it  was  not  an 
independent  department,  and  for  forty  years  remained  as  a 
branch  of  the  Treasury  department.  The  rapid  development  of 
the  Nation,  with  the  resultant  enormous  increase  in  adminis- 
trative activities  by  the  government,  made  the  establishment  of 
new  departments  vitally  necessary.  In  fact,  the  general  devel- 
opment of  the  national  life  is  indicated  rather  clearly  by  the 
formation  of  the  executive  departments.  In  the  beginning  the 
pressing  problems  for  the  new  government  were  those  of  estab- 
lishing satisfactory  relations  with  the  Old  World  countries,  pro- 
tecting itself  against  outside  aggressions,  maintaining  law  and 
order  at  home,  and  placing  the  Nation's  finances  upon  a  sound 
basis.  The  first  three  departments  were  charged  with  these 
duties,  while  those  established  later  have  been  the  logical 
results  of  different  phases  of  the  national  development. 

The  State  Department.  —  The  Department  of  State  tradi- 
tionally has  been  considered  the  most  important  of  the  depart- 
ments, and  the  Secretary  of  State  has  from  the  beginning  taken 
first  rank  among  the  members  of  the  cabinet.  He  is  sometimes 
spoken  of  as  the  premier  of  the  cabinet,  but  this  is  wholly 

H 


98  COMPAR.\TrV^E  FREE   GOVERNMENT 

inaccurate  and  implies  a  position  on  the  part  of  the  Secretary 
of  State  which  he  does  not  have.  His  relationsliip  to  his  associ- 
ates in  the  cabinet  is  in  no  sense  that  of  a  i)rime  minister  to  his 
colleagues.  They  are  in  no  way  officially  dependent  upon  him 
either  for  their  positions  or  their  influence.  Like  him  they  hold 
office  at  the  will  of  the  President.  The  relation  of  the  Secretary 
of  State  to  the  President,  however,  ordinarily  has  been  some- 
what difTerent  from  that  of  other  cabinet  members.  He  has 
had  greater  freedom  usually  in  the  control  of  his  department 
than  any  of  his  associates.  This  is  due  to  the  nature  of  the 
State  department's  work  in  connection  with  foreign  relations. 
This  work  requires  for  its  efficient  performance  the  highest 
ability,  and  thorough  understanding  of  international  law  and 
the  problems  of  world  politics.  It  requires  familiarity  with  the 
ways  of  diplomacy  and  great  tact  and  skill  in  handling  the 
many  delicate  questions  of  foreign  policy  that  constantly 
arise.  By  no  means  all  of  the  Presidents  have  been  fitted  by 
training  and  character  to  direct  personally  the  Nation's  foreign 
policy.  Moreover,  the  pressure  of  duties  in  connection  with 
the  domestic  administration  is  usually  so  great  that  the  average 
President  cannot  give  detailed  attention  to  foreign  alTairs. 
The  President,  of  course,  may  interfere  witli  the  plans  of  the 
Secretary,  or  take  personal  charge  of  the  matter  under  consider- 
ation if  he  wishes  to  do  so,  for  the  resi)onsil)ility  is  his  and  can- 
not be  shiflefl  to  any  one  else.  Frequently  this  is  done,  and 
at  times  of  real  crisis  in  international  relations,  the  strong 
President  will  assume  personal  direction  of  the  nation's  foreign 
policy. 

The  most  important  duties  of  the  Secretary  of  Stale  are 
these  in  regard  to  foreign  afTairs,  although  other  duties  are  im- 
posefl  by  law.  The  negotiation  of  treaties  of  all  kinds  is  carried 
on  through  his  office.  Under  his  direction  is  conducted  all  cor- 
respondence with  the  public  ministers  and  consuls  of  the  I'nited 
States  and  with  the  rej)resentatives  of  foreign  powers  accreditcfl 
to  the  United  States.  He  signs  extradition  papers  for  the  re- 
turn of  fugitives  from  justice,  issues  passports  to  cili/ens  of 
the  United  Slates,  anri,  in  general,  looks  after  American  interests 
in  foreign  cf»untries.  I  le  is  assisted  in  his  work  by  three  assistant 
secretaries  anfl  a  large  clerical  force.  The  work  of  his  depart- 
ment is  classified  and  is  conducted  by  a  number  of  separate 


THE  NATIONAL  ADMINISTRATION  99 

bureaus,  the  two  dealing  with  foreign  affairs  being  the  diplo- 
matic and  consular  bureaus.  The  former  has  charge  of  cor- 
respondence with  the  diplomatic  representatives  of  the  govern- 
ment and  the  latter  of  correspondence  with  the  consular  officers. 
The  diplomatic  service  concerns  itself  with  the  relations  of  the 
government  of  the  United  States  to  other  governments,  while 
the  consular  service  gives  its  chief  attention  to  the  personal 
and  commercial  interests  of  American  citizens.  All  of  this 
work  is  under  the  general  supervision  of  the  Secretary  of  State, 
who  thus  has  direction  over  a  large  number  of  officials  located 
in  all  of  the  countries  of  the  world.  It  is  unnecessary  to  elabo- 
rate here  the  functions  of  the  State  department  with  reference 
to  foreign  affairs  since  the  control  of  foreign  relations  was  dis- 
cussed somewhat  in  detail  in  connection  with  the  work  of  the 
President.^ 

The  minor  duties  which  the  Secretary  of  State  performs  are 
those  which  come  to  him  as  the  medium  of  correspondence 
between  the  President  and  the  governors  of  the  States  and  as 
the  keeper  of  the  seals  and  the  archives  of  the  national  govern- 
ment. He  affixes  the  Great  Seal  to  the  President's  proclama- 
tions and  to  important  commissions,  and  to  warrants  for  the 
extradition  of  fugitives  from  justice.  He  publishes  the  laws 
and  resolutions  of  Congress,  amendments  to  the  Constitution, 
and  proclamations  declaring  the  admission  of  new  States  into 
the  Union.  He  is  custodian  of  the  laws  and  treaties  of  the 
United  States  and  is  charged  with  the  preservation  of  the 
government  archives.  These  duties  are,  for  the  most  part, 
merely  formal.  They  add  Uttle  to  the  influence  of  the  State 
department.  That  which  gives  it  primacy  among  the  executive 
departments  is  the  vital  importance  of  the  Nation's  foreign  rela- 
tions. The  issue  of  peace  or  war  may  hinge  upon  the  judgment 
of  the  Secretary  of  State  and  the  work  of  his  subordinates. 

Financial  Administration.  —  General  control  of  the  Nation's 
finances  is  lodged  in  the  Department  of  the  Treasury.  Naturally, 
then,  this  department  is  looked  upon  as  one  of  the  most  im- 
portant. In  rank  it  is  accorded  a  place  next  to  the  State  depart- 
ment. The  age-long  belief  that  the  liberties  of  the  people  are 
involved  in  the  control  of  the  public  purse  has  lost  none  of  its 
vitaHty.     Because  of  this  belief  Congress  has  sought  to  retain 

'  Above,  p.  64. 


lOO  COMI'ARATI\K    FREE   GOVERXMEXT 

power  over  the  Treasury  {lei)artmenl  to  a  degree  not  attempted 
in  connection  with  the  other  departments.  The  relation  of  this 
department  to  Congress  is,  therefore,  somewhat  different  from 
that  of  the  other  departments.  The  attitude  of  Congress  is 
shown  by  the  acts  passed  in  17S9  creating  the  State,  War,  and 
Treasury  departments.  The  Secretaries  of  State  and  War 
were  ordered  to  "  perform  and  e.xecute  such  duties  as  shall 
from  time  to  time  be  enjoined  on  or  entrusted  to  them  by  the 
President  of  the  United  States."  Upon  the  Secretar>'  of  the 
Treasury,  however,  were  imposed  certain  duties  enumerated  in 
the  statute,  and,  in  addition,  that  of  performing  "  all  such 
ser\nces  relative  to  the  fmances,  as  he  shall  be  directed  to  per- 
form." But  the  law  does  not  intimate  whether  this  direction 
shall  come  from  the  President  or  from  Congress.  Moreover, 
the  Secretary  was  ordered  "  to  make  report  and  give  informa- 
tion to  either  branch  of  the  Legislature,  in  person  or  in  writing, 
as  he  may  be  required."  *  By  reason  of  this  last  provision 
Congress  need  not  address  its  request  to  the  President,  but  may 
send  it  directly  to  the  head  of  the  Treasury  department. 

The  general  management  of  the  department  rests  with  the 
Secretary  who  has  under  him  three  assistant  secretaries  and  a 
large  number  of  other  departmental  officers  and  employees.  The 
assistant  secretaries  are  of  the  same  rank  and  to  each  is  given 
supervision  of  certain  divisions  in  the  Secretary's  office  and  other 
somewhat  independent  bureaus.  The  duties  of  the  department 
cover  a  wide  range,  some  of  them  being  unrelated  to  fiscal  alTairs. 
Discussion  here  will  be  confined  substantially  to  the  collection  of 
revenue,  a  function  of  the  highest  imjiortance  in  every  Stale. 

The  collection  of  revenue  involves  two  important  services, 
namely,  the  customs  service  and  the  internrd  revenue  service. 
The  first  has  to  do  with  the  collection  of  duties  imposed  by 
law  upon  imported  goods.  Such  duties  have  been  one  of  the 
chief  sources  of  the  government's  income.  Necessarily,  there- 
fore, all  branches  of  the  government  and  tin-  i)eople  generally 
are  keenly  interested  in  the  customs  administration.  A  some- 
what complex  administrative  organization  has  been  evolved, 
by  congressional  acts  and  executive  orders,  for  the  discharge 
of  this  function.  The  country  is  divided  into  collection  districts, 
with  designated  ports  of  entry,  at  which  goods  shipjied  from 

'  Hinsdale,  "  .\  Ilislory  of  tiic  President's  Cal)inct."  p.  8. 


THE   NATIONAL  ADMINISTRATION  lOl 

abroad  are  received.  At  each  port  of  entry  government  officers 
are  stationed,  the  most  important  of  whom  is  the  collector.  At 
the  larger  ports,  such  as  New  York  or  Philadelphia,  there  are  a 
collector,  surveyor,  and  naval  officer,  with  a  large  number  of 
subordinate  employees  such  as  appraisers,  inspectors,  gaugers, 
and  clerks.  It  is  the  business  of  these  officers  to  watch  the  un- 
loading of  goods,  check  up  the  invoices,  pass  judgment  on 
quantity  and  values,  and  see  that  the  customs  laws  are  enforced. 
This  is  a  task  of  great  difficulty,  and  smuggling  is  not  infre- 
quent. General  supervision  of  the  customs  administration  is 
intrusted  to  one  of  the  assistant  secretaries  who  is,  of  course, 
under  the  direction  of  the  Secretary  of  the  Treasury. 

The  second  branch  of  the  revenue  administration  is  known 
as  the  internal  revenue  service.  This  is  a  regular  bureau  in 
the  Treasury  department,  although  its  head,  known  as  Com- 
missioner of  Internal  Revenue,  is  to  a  large  degree  independent 
of  control  by  the  Secretary  of  the  Treasury.  The  function  of 
the  Commissioner  is  to  enforce  the  excise  or  internal  revenue 
laws  as  enacted  by  Congress,  the  chief  taxes  collected  being 
those  upon  liquors,  tobacco,  corporations,  and  incomes.  Other 
taxes,  however,  such  as  stamp  taxes  of  various  kinds,  are  levied 
at  times  to  meet  a  need  for  greater  revenue.  To  facilitate  the 
enforcement  of  the  laws  the  country  is  divided  into  internal 
revenue  districts,  but  this  is  done  by  order  of  the  President  and 
not  by  act  of  Congress,  as  is  the  case  with  the  customs  districts. 
In  each  district  there  is  a  collector,  appointed  by  the  President, 
and  whatever  subordinate  officers  are  necessary,  the  latter  being 
appointed  by  the  Secretary  of  the  Treasury.  To  insure  ade- 
quate enforcement  of  the  laws  it  is  necessary  to  employ  a  corps 
of  internal  revenue  agents  who  are  directly  responsible  to  the 
Commissioner  of  Internal  Revenue  and  whose  duty  it  is,  in  the 
capacity  of  detectives,  to  ferret  out  and  prevent  frauds.  The 
taxes  are  not  levied  upon  the  value  of  the  product,  but  upon 
the  amount,  and  the  collection  procedure  is  therefore  more 
simple  than  that  in  connection  with  customs  duties.  ]\Ianu- 
facturers  must  purchase  government  stamps  which  cover  the 
amount  of  the  tax.  Heavy  penalties  are  imposed  upon  those 
found  guilty  of  selling  goods  upon  which  the  tax  has  not  been 
paid. 

In  addition  to  the  work  of  collecting  revenue,  the  Treasury 


I02  COMrARATU  !•:    FREE   C.OVERXMEXT 

department  has  important  duties  in  connection  with  the  super- 
vision of  national  banks,  the  issuance  of  paper  currency,  the 
coinage  of  gold  and  silver,  the  custody  of  public  moneys,  the 
auditing  of  governmental  accounts,  the  administration  of  the 
public  debt,  and  other  matters  not  related  to  fiscal  affairs,  such 
as  the  promotion  and  protection  of  pubHc  health,  the  construc- 
tion of  public  buildings,  and  the  management  of  the  hfe-saving 
service.  These  non-liscal  activities  may  properly  be  transferred 
to  other  departments  at  any  time  if  Congress  so  wishes. 

Departments  of  War  and  the  Navy.  —  The  problem  of 
national  defense,  by  authority  of  Congress  and  under  the  direct 
control  of  the  President,  is  intrusted  to  the  Department  of  War 
and  to  the  Department  of  the  Navy.  The  policy  to  be  pursued 
with  respect  to  the  strength  of  the  military  and  naval  forces  is 
exclusively  within  the  control  of  Congress.  The  War  and 
Navy  departments  can  have  nothing  to  say  concerning  that 
except  by  way  of  recommendations.  Their  function  is  exclu- 
sively administrative  and  is  discharged  under  the  direct  super- 
vision of  the  President,  who,  by  the  Constitution,  is  made  the 
commander  in  chief  of  all  the  armed  forces.  This  authority 
he  holds  in  times  of  peace  as  well  as  in  times  of  war.  lie  is 
likewise  the  head  of  the  militia  of  the  States  when  called  into 
the  service  of  the  Nation.  It  is  for  him  to  say  what  disposition 
shall  be  made  of  both  land  and  sea  forces.  The  department 
heads  through  whom  he  acts  are  the  Secretary  oi  War  and  the 
Secretary  of  the  Navy.  The  chief  function  of  each  is  to  see 
that  the  service  under  his  control  is  well  eciuipped,  well  trained, 
and  eflicient,  to  the  extent  possible  under  the  regulations  and 
the  grants  of  money  made  by  Congress.  The  organization  of 
each  department  is  complex,  involving  many  l)ureaus  and  divi- 
sions, and  the  employment  of  a  large  number  of  ollicers. 

The  duties  of  the  Secretary  of  War  are  such  as  are  imi)osed 
upon  him  by  law  or  by  order  of  the  President.  By  law  he  is 
re(|uired  to  prepare  estimates  of  ai)[)ropriations  ncc<li<l  by  the 
War  department  and  to  look  after  all  expenditures  for  the 
maintenance  and  operations  of  the  army.  Under  his  sujier- 
vision  is  the  United  Stales  Military  Academy  at  West  Point, 
the  various  army  posts  throughout  the  country,  and  all  the 
military  bureaus  into  which  the  War  d(|»artnunl  is  divided  for 
administrative  [)urpf)ses.     'I'he  Secretary  <>f  War  is  usually  a 


THE  NATIONAL  ADMINISTRATION  103 

civilian,  but  the  heads  of  the  military  bureaus  are  officers  of  the 
regular  army.  The  preparation  of  plans  for  the  national  de- 
fense and  the  mobilization  of  the  army  for  peaceful  maneuvers 
as  well  as  for  operations  in  time  of  war  is  in  the  hands  of  the 
General  Staff  Corps,  at  the  head  of  which  is  the  chief  military 
officer  known  as  the  Chief  of  Staff.  There  is  one  assistant 
secretary  to  whom  the  Secretary  of  War  delegates  important 
functions  and  upon  whom  heavy  responsibilities  are  imposed 
by  law. 

The  bulk  of  the  work  of  the  War  department  is  naturally 
concerned  with  the  administration  of  the  army,  but  other  func- 
tions of  very  great  value  to  the  nation  have  been  given  it  by 
law.  One  of  these,  involving  the  expenditure  of  very  large 
sums  of  money,  is  the  construction  of  river  and  harbor  improve- 
ments that  have  been  authorized  by  Congress.  The  duty  of 
examining  and  passing  upon  surveys  and  plans  and  making 
recommendations  for  improvements  is  placed  upon  the  Board 
of  Engineers  for  Rivers  and  Harbors,  but  the  actual  work  of 
construction  is  in  the  hands  of  the  Corps  of  Engineers  of  the 
army,  at  the  head  of  which  is  the  Chief  of  Engineers.  The 
primary  function  of  the  engineering  corps  is,  of  course,  to  solve 
engineering  problems  which  confront  the  army  in  time  of  war, 
but  to  the  great  advantage  and  profit  of  the  Nation  the  skill  of 
the  engineers  has  been  used  in  the  construction  of  important 
pubHc  improvements.  A  striking  illustration  of  this  is  seen  in 
the  construction  of  the  Panama  Canal,  one  of  the  world's  greatest 
engineering  achievements.  It  was  only  after  this  huge  under- 
taking was  placed  in  the  charge  of  the  army  engineers  that  satis- 
factory progress  was  made.  Splendid  results  have  also  been 
achieved  by  the  Corps  of  Engineers  in  the  Philippine  Islands  in 
the  construction  of  roads,  bridges,  and  other  pubUc  works. 

The  Department  of  the  Navy,  like  the  other  departments,  is 
divided  into  a  number  of  bureaus,  each  with  its  special  field  of 
work.  General  control  over  the  department  rests  with  the 
Secretary  who  acts  under  the  direction  of  the  President.  There 
is  one  assistant  secretary,  who,  like  the  Secretary,  is  a  civilian. 
The  different  bureaus  are  in  charge  of  officers  who  understand 
the  technical  problems  of  naval  administration. 

Administration  of  Justice.  —  In  a  country  as  large  as  the 
United  States,  with  a  government  in  wliich  the  courts  hold  so 


I04  COMPARATIVE    FRKE    GOVERXMKXT 

central  a  place  and  legal  checks  are  so  prominent,  the  depart- 
ment which  has  in  charge  the  administration  of  justice  is  certain 
to  be  of  high  rank  and  great  practical  value.  Law  is  exalted 
to  a  high  place  in  America,  as  an  agency  for  reform,  and  is  re- 
sorted to  for  all  kinds  of  purposes ;  yet,  singularly,  respect  for 
the  law  on  the  part  of  the  average  citizen  is  far  below  what  it 
ought  to  be.  In  fact,  the  positive  disrespect  for  law  which  is 
so  prevalent  in  the  United  States  constitutes  one  of  the  Nation's 
serious  problems.  Because  of  it  the  administration  of  justice 
is  diflicult,  whether  national,  State,  or  local,  and  the  officers  in 
charge  carry  a  heavy  burden  of  responsibility. 

The  branch  of  the  national  administration  which  is  imme- 
diately responsible  for  this  work  is  the  Department  of  Justice. 
.•\t  the  head  of  this  department  is  the  Attorney-General  who  is 
the  chief  law  officer  of  the  government.  He  is  legal  adviser  to 
the  President  and  the  other  heads  of  departments,  and  upon 
request  gives  his  advice  and  opinion  upon  questions  of  law  that 
arise  in  connection  with  administrative  activities.  It  is  his 
duty  to  enforce  the  laws  of  the  United  States,  under  the  direction 
of  the  President,  and  to  represent  the  government,  either  in 
person  or  through  subordinate  officers,  in  all  legal  controversies 
to  which  the  government  is  a  party.  He  has  general  sujK'r- 
vision  over  the  Unite<l  States  attorneys  and  marshals  in  the 
States  and  Territories.  He  is,  in  short,  responsible,  under  the 
President's  direction,  for  the  administration  of  the  Nation's 
laws  as  far  as  court  proceedings  are  essenlial.  His  work  has 
steadily  increased  in  importance  witli  the  growth  of  the  Nation. 
In  view  of  the  complex  industrial  life  that  has  developed  and 
the  resultant  flifficullies  with  respect  to  the  enforcement  of  the 
corporation  laws,  no  other  officer  in  tlie  a(hninistralive  depart- 
ments holds  a  position  of  more  \ital  consefiui-nce.  It  is  i)lain, 
at  a  glance,  that  th<-  At  iorn(y-(  Icnc  ral  inu^t  have  a  great  deal 
of  helj). 

First  in  rank  among  the  .Attorncy-deneral's  assistants  is  the 
Soli(itor-(Jeneral.  Under  the  regular  |)ractice  tiie  iWwi  duly  of 
the  Solicitor-General  is  to  look  after  the  government's  business 
before  the  Supreme  Court  of  the  United  States.  The  Attorney- 
General  may  a|)pear  in  person  in  such  cases,  and  sometimes  in 
the  more  important  cases  does  so,  but  as  a  rule  argiwnenls  before 
the  Supreme  Court  on  behalf  of  the  govi-rnnunl  arc  made  by 


THE  NATIONAL  ADMINISTRATION  105 

the  Solicitor-General,  with  the  help  of  Assistant  Attorneys- 
General.  He  is  under  the  direction  of  the  Attorney-General 
and  may  be  sent  to  represent  the  government  in  cases  pending 
in  the  lower  federal  courts  or  even  in  State  courts  in  which  the 
interests  of  the  United  States  are  involved.  He  may  also  be 
called  upon  by  the  President  and  the  heads  of  departments  for 
legal  advice,  subject  to  the  approval  of  the  Attorney-General. 

Next  below  the  Solicitor-General  is  an  officer  known  as 
Assistant  to  the  Attorney-General,  who  for  the  most  part  has 
charge  of  special  cases  arising  under  the  antitrust  and  inter- 
state commerce  laws.  He  is  under  the  direction  of  the  Attorney- 
General,  however,  and  other  duties  may  be  assigned  to  him  as 
the  latter  may  desire. 

There  are,  besides,  a  number  of  Assistant  Attorneys-General 
who  have  important  duties  to  discharge  in  connection  with  the 
preparation  of  legal  opinions  and  the  presentation  of  cases  before 
the  Supreme  Court  and  the  Court  of  Claims.  It  is  the  func- 
tion of  these  officers  to  assist  the  Attorney-General  in  whatever 
ways  may  be  prescribed  by  him,  and  hence  they  may  be  called 
on  to  help  represent  the  government  in  any  of  the  courts.  In 
addition  there  are  assistants  known  as  Solicitors  who  are  assigned 
to  different  executive  departments  to  look  after  legal  questions 
that  arise.  These  Solicitors  are  the  chief  law  officers  of  their 
respective  departments,  but  are  under  the  supervision  and 
control  of  the  Attorney-General. 

To  obtain  efficiency  in  its  work,  the  Department  of  Justice 
is  divided  into  a  number  of  smaller  administrative  units.  Of 
the  officers  in  charge  of  these,  mention  may  be  made  of  the 
Superintendent  of  Prisons  and  Prisoners,  to  whom  is  given 
supervision  of  all  United  States  prisons,  and  the  Attorney  in 
charge  of  pardons  who  receives  and  looks  after  all  applications 
for  pardon  except  in  military  and  naval  cases.  These  officers, 
of  course,  are  under  the  direction  of  the  Attorney-General  who 
is  responsible  to  the  President  for  all  that  is  done. 

Department  of  the  Interior.  —  A  branch  of  the  national  ad- 
ministration which  deserves  special  emphasis,  because  of  the 
magnitude  of  its  work,  is  the  Department  of  the  Interior.  Its 
activities  cover  a  wide  range  and,  as  is  true  of  some  of  the  other 
departments,  deal  with  a  number  of  wholly  unrelated  subjects. 
The  head  of  the  department  is  known  as  Secretary  of  the  In- 


lo6  COMPARATIVE  FREE   GOVERNIMENT 

terior  and  has  the  help  of  two  assistant  secretaries  and  various 
commissioners  and  directors  who  are  in  charge  of  the  different 
bureaus  into  which  the  department  is  divided.  The  number 
of  employees  is  necessarily  very  large. 

One  of  the  leading  functions  of  the  Department  of  the  In- 
terior is  in  connection  with  the  general  policy,  so  vital  to  the 
Nation's  welfare,  known  as  the  conservation  of  natural  resources. 
Immensely  difficult  problems  are  involved  and  the  Secretary  of 
the  Interior  is  necessarily  a  big  factor  in  their  solution.  It  is 
one  of  his  chief  duties  to  help  devise  methods  for  the  rational 
development  and  use  of  the  Nation's  natural  resources,  and  for 
the  prevention  of  the  exploitation  and  needless  waste  which 
have  been  permitted  in  years  past.  Much  of  this  work  now 
centers  in  the  Territory  of  Alaska,  with  its  wonderful  deposits 
of  coal  and  the  precious  metals,  and  almost  hmitless  possibilities 
of  development.  At  least  three  of  the  bureaus  of  the  depart- 
ment are  directly  related  to  this  conservation  work,  —  the 
General  Land  Office,  the  Reclamation  Service,  and  the  Geo- 
logical Survey. 

The  first  of  these,  under  the  supervision  of  an  officer  known 
as  the  Commissioner  of  the  General  Land  Office,  is  charged  with 
the  management  and  disposition  of  public  lands.  This  involves 
a  number  of  duties,  such  as  the  issuance  of  patents  for  lands, 
adjudicating  conflicting  claims,  keeping  full  records  of  all 
transactions  touching  public  lands,  and  the  general  administra- 
tion of  the  land  laws.  Branches  of  this  office  arc  maintained 
in  different  States,  with  agents  in  charge.  Owing  to  the  vast 
amount  of  land  which  the  United  States  has  had  in  its  posses- 
sion, and  its  rapid  development  under  the  homestead  laws  and 
other  statutes  providing  for  its  utiUzalion,  the  Land  Office  has 
always  been  of  great  importance.  Though  the  pubHc  domain 
is  by  no  means  what  it  used  to  be,  it  is  still  immensely  valuable. 
Fully  a  million  and  a  half  square  miles  of  public  lands  are  still 
held  by  the  government.  All  of  this  is  under  the  supervision 
of  the  Land  Office  except  the  administration  of  the  national 
forests,  which  is  lodged  in  the  Dej)artment  of  Agriculture. 

The  Reclamation  Service,  under  the  supervision  of  a  Di- 
rector, has  charge  of  all  the  government's  work  in  reclaiming  arid 
lands  through  the  construction  and  operation  of  irrigation 
works.     Numerous   [)rojects   of    this    kind,    involving   difficult 


THE  NATIOxNAL   ADMINISTRATION  107 

engineering  problems  and  the  expenditure  of  large  sums  of 
money,  have  been  undertaken.  The  satisfactory  results  at- 
tained point  to  still  larger  achievements  in  the  years  to 
come. 

Upon  the  Geological  Survey  is  imposed  the  duty  of  classify- 
ing the  pubHc  lands,  analyzing  their  geologic  structure,  and 
determining  their  mineral  deposits.  Careful  surveys  are  made, 
both  topographic  and  geologic,  and  detailed  statistical  infor- 
mation is  collected  and  published.  This  work  is  considered  of 
high  value,  and  upon  it  depends  to  a  considerable  degree  the 
policies  of  the  government  concerning  the  development  and 
conservation  of  the  public  domain. 

Among  the  other  unrelated  branches  of  the  Interior  depart- 
ment mention  should  be  made  of  the  Patent  Office,  the  Pension 
Office  or  Bureau,  the  office  of  the  Commissioner  of  Indian 
Affairs,  and  the  Bureau  of  Education.  The  Indians  are 
the  wards  of  the  Nation  and  the  enforcement  of  the  laws  for 
their  protection  and  for  the  promotion  of  their  welfare  is  in  the 
hands  of  the  Commissioner,  who  acts  under  the  supervision  of 
the  Secretary  of  the  Interior.  The  Pension  Office  passes  upon 
claims  made  under  the  laws  enacted  by  Congress  by  those  who 
have  served  in  the  army  or  navy.  The  work  of  this  bureau  is 
heavy,  though  to  a  large  extent  ministerial  in  character.  The 
amount  of  money  expended  for  pensions  is  enormous.  In  the 
fifty  years  following  the  Civil  War  at  least  four  billions  of  dol- 
lars were  paid  out  in  this  way.  The  Patent  Office  is  under  the 
direction  of  a  Commissioner  who  is  in  full  control  of  the  issuance 
of  patents  and  the  administration  of  the  patent  laws.  The 
work  of  this  office  in  the  examination  of  applications  for  patents 
is  very  heavy.  More  than  50,000  applications  are  filed  each 
year.^  The  relation  of  patented  inventions  to  the  industrial 
development  of  the  Nation  and  the  growth  of  industrial  monop- 
oUes  need  only  be  mentioned  to  indicate  the  value  of  good 
patent  laws  and  efficient  patent  administration.  The  settle- 
ment of  infringement  suits  is  in  the  hands  of  the  federal  courts, 
the  Circuit  Court  of  Appeals  having  final  judgment.  The 
function  of  the  Bureau  of  Education  is  largely  informational. 
It  has  no  administrative  authority  over  school  management ; 
that  lies  with  the  State.     Its  duty  is  mainly  that  of  collecting 

1  Fairlie,  "National  Administration  of  the  United  States,"  p.  211. 


lo8  COMPARATIVE  FREE   GOVERN^MENT 

and  disseminating  information  for  the  purpose  of  promoting 
the  cause  of  education. 

The  Remaining  Departments.  —  The  four  remaining  depart- 
ments are  those  of  the  Post  Ofifice,  Agriculture,  Commerce,  and 
Labor.  The  name  of  each  suggests  rather  definitely  the  nature 
of  its  work.  The  Post  Office  department  is  one  of  the  largest 
of  all  and  is  noteworthy  for  the  manner  in  which  its  adminis- 
tration has  been  sacrificed  to  the  interests  of  the  political  parties 
and  the  demands  of  partisan  office-seekers.  It  is  in  that  depart- 
ment more  than  in  any  of  the  others  that  the  patronage  evil 
has  been  most  deeply  rooted  and  has  shown  its  largest  fruitage. 
For  a  long  time  post  office  positions,  however  small,  were  looked 
upon  as  spoils  to  be  awarded  to  workers  in  the  victorious  party 
in  return  for  partisan  services.  In  recent  years  this  evil  has 
been  greatly  reduced  by  the  extension  of  the  civil  service  regu- 
lations so  as  to  protect  a  large  number  of  postal  employees ; 
but  the  appointment  of  postmasters  in  the  larger,  more  im- 
portant offices  in  all  the  States  is  still  a  partisan  matter.  That 
the  postal  service  has  suffered  greatly  from  this  abuse  goes 
without  saying.  Ehmination  of  partisan  administration  of  this 
service  is  one  of  the  reforms  most  needed  in  the  United  States 
and  for  which  a  public  demand  is  steadily  developing.  The 
establishment  of  the  parcels  post  and  the  possibility  of  the 
government's  taking  over  ultimately  the  telegraph  and  telephone 
services  of  the  Nation  only  emphasize  the  need  for  thoroughly 
efficient  administration,  free  from  partisan  politics  and  party 
control. 

The  underlying  purposes  of  the  other  depart monts  men- 
tioned are  the  development  and  conservation  of  the  great 
agricultural  resources  of  the  United  States;  the  jjromotion  of 
her  industries  and  expansion  of  her  commerce;  and  the  protec- 
tion anfl  advancement  of  her  industrial  workers.  Within  the 
province  of  these  dei)artments  arc  found  some  of  the  greatest 
problems  confronting  the  American  peojile.  These  include  prob- 
lems of  both  wealth  jiroduction  and  wealth  distribution;  they 
involve  vital  fiuestions  of  social  economy  as  well  as  f|Ucslions 
of  industrial  economy.  'I'o  tlic  solution  of  Ihcsf  tlir  Xalion  is 
devoting  earnest  thought,  and  the  (leparlnunts  iiaiiic(|  give 
evidence  of  the  national  desire  to  have  the  govern  nun  t  rcsi)()nd 
to  the  real  need^  of  the  |)cople.     These  departments,   particu- 


THE   NATIONAL   ADMINISTRATION  lOQ 

larly  those  of  Agriculture  and  Labor,  as  they  are  organized  and 
actually  operate,  illustrate  well  the  fact  that  the  functions  of 
government  in  a  modern  democracy  multiply  rapidly  in  num- 
ber and  expand  widely  in  scope,  if  the  common  life  of  the  people, 
in  all  of  its  aspects,  receives  adequate  consideration.  Democ- 
racy is  social,  and  the  general  social  welfare  is  its  one  great 
aim. 

Interstate  Commerce  Commission.  —  In  addition  to  the  regu- 
lar executive  departments,  the  national  administration  includes 
several  independent  bureaus  or  commissions  which  play  a  big 
part  in  national  affairs.  Among  these  are  the  Interstate  Com- 
merce Commission,  the  Civil  Service  Commission,  and  the 
Federal  Trade  Commission.  Only  brief,  general  comment  upon 
the  work  of  these  bodies  may  be  given  here. 

The  Interstate  Commerce  Commission  was  estabHshed  by 
Congress  in  1887,  after  many  years  of  agitation  for  national 
regulation  of  railway  rates  and  service.  The  action  of  Congress 
was  taken  under  its  constitutional  grant  of  power  to  regulate 
commerce  among  the  States  and  with  foreign  nations.  Before 
the  Civil  War,  very  little  use  of  this  power  was  made,  but  fol- 
lowing the  war,  when  the  United  States  entered  upon  a  period 
of  great  industrial  development  and  trade  expansion,  the  de- 
mand arose  and  became  insistent  that  the  transport  companies 
engaged  in  interstate  commerce  be  placed  under  adequate 
national  control.  This  demand  was  caused  by  widespread 
and  flagrant  abuses  on  the  part  of  the  railways  in  granting 
rebates  and  special  privileges  to  favored  shippers,  in  discriminat- 
ing among  communities  and  sections,  and  in  charging  unreason- 
ably high  rates  for  transportation  service.  Congress  was  slow 
to  respond  to  public  sentiment,  but  finally  yielded,  and  the 
interstate  commerce  act  of  1887  was  the  result.  This  law  has 
been  amended  several  times,  under  pressure  of  public  opinion, 
with  the  result  that  the  powers  of  the  Interstate  Commerce 
Commission  are  far  more  extensive  than  they  were  at  first. 
Its  authority  over  railways  and  other  common  carriers  is  very 
great  and  involves  a  burden  of  responsibility  such  as  few  of 
the  other  branches  of  the  national  administration  are  forced  to 
bear. 

The  Interstate  Commerce  Commission  is  composed  of  seven 
members,  appointed  by  the  President  and  confirmed  by  the 


no  COMPARATIVE   FREE   GOVERNMENT 

Senate.  Each  commissioner  receives  a  salary  of  $10,000  a 
year.  The  law  which  the  Commission  administers  applies  to 
all  corporations  and  persons  engaged  in  the  transportation  of 
passengers  or  property  by  railway,  or  by  rail  and  water,  from 
State  to  State  or  to  a  foreign  country,  —  and  to  all  common 
carriers  transporting  oil  or  other  commodities,  except  water  and 
gas,  by  means  of  pipe  lines,  or  by  means  of  pipe  lines  and  rail 
or  water  combined.  Of  course  the  transportation  must  be 
interstate  in  character  to  bring  it  under  the  Commission's  con- 
trol ;  intrastate  commerce  lies  within  the  authority  of  the 
States.  By  law  many  restrictions  are  imposed  upon  carriers. 
Rebates  and  discriminatory  rates  among  shippers  are  forbidden  ; 
all  charges  for  carrying  passengers  and  freight  must  be  reason- 
able ;  schedules  of  rates  must  be  kept  open  to  the  public ; 
changes  in  rates  can  be  made  only  after  proper  notice  to  the 
Commission,  which  is  empowered  to  suspend  increases  in 
charges  pending  investigation  and  to  determine  whether  the 
changes  shall  be  made ;  granting  free  transportation,  except  as 
specified  by  the  law,  is  forbidden ;  giving  preference  to  one 
locality  over  another,  through  discriminatory  charges,  is  pro- 
hibited ;  detailed  annual  reports  must  be  made  to  the  Com- 
mission according  to  forms  which  the  Commission  prescribes ; 
and  railway  engines  and  cars  must  be  equipped  with  certain 
safety  appliances  specified  in  the  law.  The  enforcement  of 
these  regulations,  and  others  not  enumerated,  is  in  the  hands 
of  the  Commission.  In  addition,  certain  powers  are  given  to 
the  Commission,  and  specific  duties  arc  imjiosed  ujion  it.  It 
may  begin  the  prosecution  of  carriers  which  violate  the  law, 
by  requesting  the  Department  of  Justice  to  bring  suit.  It 
may  investigate  fully  the  management  of  carriers  coming  under 
the  law,  and  in  doing  this  may  summon  witnesses,  take  testi- 
mony under  oath,  and  compel  the  production  of  all  books  and 
pa[jers  needed  in  the  investigation.  It  is  also  authorized  to 
hear  complaints  either  by  or  against  any  carrier  engaged  in 
interstate  commerce,  to  \'\\  rcasonaI)le  charges  in  accordance 
with  the  facts  revealed,  and  to  award  damages  to  shij^pers  or 
other  persons  injured  l)y  unlawful  acts  on  llic  part  of  carriers. 
In  the  [)erformance  of  its  \v(jrk,  covering  ,m)  wide  a  field,  the 
Commission  ref]uires  the  services  of  a  trained  force  of  investi- 
gators, engineers,  and  accountants. 


THE   NATIONAL  ADMINISTRATION  III 

In  view  of  the  very  large  railway  mileage  in  the  United 
States  and  the  enormous  volume  of  interstate  commerce  trans- 
ported every  year,  it  needs  no  comment  to  make  plain  the  high 
importance  of  the  Interstate  Commerce  Commission  and  its 
work.  The  business  of  transportation  is  fundamental  and  the 
general  industrial  prosperity  of  the  Nation  is  inextricably 
bound  up  with  it.  The  judgments  of  the  Commission  are  there- 
fore of  far-reaching  influence. 

Federal  Trade  Commission.  —  The  Federal  Trade  Commis- 
sion, estabhshed  by  act  of  Congress,  began  its  work  in  1915. 
It  is  composed  of  five  members,  appointed  by  the  President 
with  the  approval  of  the  Senate.  It  is  an  outgrowth  of  a  nation- 
wide demand  for  effective  regulation  of  corporations  engaged 
in  interstate  business,  and  for  stringent  control  of  trusts  and 
monopolies.  According  to  the  act  creating  it,  the  purpose  of 
the  Federal  Trade  Commission  is  to  prevent  persons,  partner- 
ships, and  corporations  engaged  in  interstate  trade  from  using 
unfair  methods  of  competition.  If  the  Commission  suspects 
that  unfair  methods  are  being  employed,  it  may  issue  a  com- 
plaint against  the  person  or  corporation  under  suspicion  and 
hold  a  formal  hearing  for  the  determination  of  the  facts.  It  is 
empowered  to  issue  orders  forbidding  the  practices  complained 
of  unless  proper  showing  is  made  that  the  complaint  is  not  well 
founded.  If  an  order  of  this  kind  is  issued  and  the  offender 
does  not  cease  the  objectionable  practices,  application  may  be 
made  by  the  Commission  to  the  Circuit  Court  of  Appeals  for 
the  order's  enforcement,  the  judgment  of  this  court  being  sub- 
ject to  review  by  the  Supreme  Court  of  the  United  States. 
The  Commission,  which  is  a  quasi-judicial,  quasi-administra- 
tive body,  is  also  empowered  to  investigate  the  organization, 
methods,  and  management  of  corporations  and  their  relations 
to  other  corporations  and  business  institutions ;  to  require  the 
filing  of  information  concerning  their  affairs  by  all  such  firms 
and  corporations;  and  to  investigate  trade  relations  with  for- 
eign countries,  and  make  reports  to  Congress,  together  with 
recommendations  for  new  and  supplementary  legislation. 

It  is  plain  at  a  glance  that  Congress  has  imposed  a  heavy 
task  upon  the  Federal  Trade  Commission,  —  a  task  which  will 
grow  increasingly  difficult  with  the  continued  industrial  de- 
velopment of  the  United  States.     At  the  time  the  Commission 


112  COMPARATIVE  FREE   GOVERNMENT 

was  organized  there  were  considerably  more  than  300,000  cor- 
porations, in  more  than  300  different  industries,  doing  business 
in  the  United  States.  This  number  will  grow  larger,  of  course, 
with  the  passing  of  the  years,  and  to  prevent  "  unfair  methods 
of  competition,'.'  to  say  nothing  of  the  other  duties  imposed,  is 
a  work  of  enormous  difficulty  as  well  as  of  gigantic  proportions. 
The  Commission  represents  one  part  of  the  Nation's  antitrust 
policy  and  of  its  attempt  to  maintain  competition  as  an  active 
force  in  industry  and  interstate  trade.  Its  work  is  closely  re- 
lated to  that  of  the  Department  of  Justice  in  the  administration 
of  the  antitrust  laws.  As  to  the  wisdom  of  Congress  in  estab- 
lishing the  Commission,  judgment  must  await  future  develop- 
ments. 

The  Civil  Service.  —  The  third  of  the  independent  commis- 
sions named  above,  as  deserving  special  mention,  is  the  Civil 
Service  Commission,  which  aids  the  President  in  the  admin- 
istration of  the  civil  service  laws.  The  act  creating  the  Com- 
mission was  passed  by  Congress  in  1883,  after  several  earlier 
but  futile  attempts  at  civil  service  reform  and  long-continued 
agitation.  By  the  terms  of  the  law  the  Commission  has  three 
members,  appointed  by  the  President  and  confirmed  by  the 
Senate.  It  is  provided  that  not  more  than  two  of  these  may 
be  adherents  of  the  same  political  party.  The  chief  function 
of  the  Commission  is  the  preparation  of  rules,  as  the  President 
may  request,  for  carrying  the  civil  service  requirements  into 
efifect,  and  exercising  general  supervision  over  the  work  of 
examining  applicants  for  ofBce. 

The  law  requires  open  competitive  examinations  for  testing 
the  fitness  of  appHcants  for  positions  in  tlie  classified  service. 
This  involves  the  preparation  of  many  different  kinds  of  exam- 
inations in  order  to  supply  all  the  administrative  offices  with 
adec|uately  trained  employees.  Any  citizen  o£  the  United  States 
may  try  for  a  position  in  the  federal  service.  Examinations,  of 
various  kinds  antl  covering  a  wide  range  of  subjects,  are  held 
in  each  State  and  Territory  at  least  twice  a  year.  These  are 
in  charge  of  local  boards  of  examiners,  of  which  (here  is  a  large 
number  throughout  the  Nation.  A  chief  examiner  has  his 
office  at  Washington. 

The  ap[)ointments  arc-  made  from  those  receiving  the  high- 
est  grades   in    the   examinations.     According    lo    the   rules   in 


THE  NATIONAL  ADMINISTRATION  1 13 

force,  the  Civil  Service  Commission,  when  called  upon,  sends 
to  the  department  which  is  seeking  a  new  employee  the  names  . 
of  the  three  highest  on  the  list  of  applicants  for  the  positions 
in  the  service  where  the  vacancy  exists,  and  from  these  the 
appointment  is  made.  The  two  remaining  names  are  returned 
to  the  Commission  and  replaced  on  its  register  of  candidates. 
Before  absolute  appointment  is  made,  the  successful  candidate 
must  serve  a  probationary  period  of  six  months.  This  pro- 
cedure is  the  one  usually  observed,  but  there  are  provisions 
which  modify  it  a  good  deal  at  times.  For  instance,  persons 
honorably  discharged  from  the  military  and  naval  services  are 
given  preference  over  those  who  have  not  served  in  the  army  or 
nav>^  Also,  positions  in  the  departments  at  Washington  are 
to  be  apportioned  among  the  States  and  Territories  according 
to  population.  Such  special  rules  prevent  the  strict  applica- 
tion of  the  merit  principle. 

Persons  holding  office  under  the  civil  service  law  are  not 
exempt  from  removal.  The  rule  governing  removals  is  rather 
vague  and  capable  of  abuse.  It  is  that  no  one  may  be  removed 
from  a  position  gained  through  a  competitive  examination 
"  except  for  such  causes  as  will  promote  the  efficiency  of  the 
service."  This  means  that  the  President  or  the  head  of  a 
department,  as  the  appointing  officer,  may  remove  any  civil 
service  employee  on  grounds  of  incompetency. 

The  number  of  positions  in  the  federal  executive  service  is 
very  large.  On  June  30,  1914,  there  were  more  than  482,000 
of  these,  of  which  more  than  292,000  were  in  the  classified  serv- 
ice, subject  to  competitive  examinations.  The  number  of 
positions  protected  by  the  merit  rule  has  increased  rapidly  in 
recent  years.  The  act  of  1883  by  its  own  terms  placed  only 
a  few  offices  in  the  classified  service,  but  provided  for  its  exten- 
sion by  executive,  order.  Of  course  Congress  may  extend  the 
scope  of  the  law  —  or  limit  it  —  as  it  sees  fit.  It  is  largely 
through  executive  orders,  however,  that  the  development  has 
occurred.  It  can  hardly  be  said  that  Congress  has  at  any  time 
been  zealous  in  its  advocacy  of  civil  service  reform. 

It  requires  no  very  intensive  study  of  the  civil  service  system 
in  the  United  States  to  see  that  it  is  a  far  from  perfect  system. 
The  spoils  idea  is  still  rather  deeply  rooted  in  American  politics. 
The  claims  of  party  workers  are  frequently  given  recognition 


114  COMPAR-VnVE  FREE   GOVERNMENT 

at  the  expense  of  administrative  efficiency.  Yet  improvement 
in  the  personnel  of  the  administrative  departments,  as  well  as 
in  administrative  organization  and  methods,  is  slowly  taking 
place;  and  it  may  be  assumed  that,  as  the  citizenship  of  the 
Nation  becomes  more  enlightened  and  more  alive  to  the  re- 
sponsibilities involved  in  democracy,  great  advance  will  be 
made  toward  the  goal  of  administrative  efficiency.  It  may  not 
be  too  much,  perhaps,  to  anticipate  the  time  when  there  will 
be  full  protection  of  the  administration  against  the  spoilsman 
and  the  office-seeking  politician  who  subordinate  the  public 
interest  to  private  gain. 

That  this  condition,  greatly  to  be  desired,  does  not  exist, 
however,  is  a  fact  too  plain  to  be  overlooked  by  even  the  super- 
ficial student  of  American  government.  The  work  of  adminis- 
tration has  not  been  taken  seriously  by  the  people  generally; 
its  high  importance  has  not  been  understood.  The  need  for 
trained,  efficient  administrators,  free  from  partisan  selection 
and  partisan  control,  has  been  only  slightly  felt.  Indeed,  the 
very  idea  of  a  permanent,  expert  service  is  abhorrent  to  the 
minds  of  many  Americans.  The  traditional  view  has  been  that 
any  person  who  can  win  an  election  or  obtain  an  appointment 
to  a  public  office  is  as  good  as  another  for  the  discharge  of  its 
duties.  Proven  ability  to  do  the  work  demanded  has  not  been 
considered  essential.  Success  and  zeal  as  a  party  worker  have 
been  placed  before  fitness  and  capacity.  The  general  results 
have  been  weakness  in  administrative  organization,  inferior 
administrative  methods,  and  low  standards  of  public  ser\ice. 
Because  of  the  failure  to  emphasize  the  high  value  of  eificient 
administration  by  trained  officers,  the  Nation  finds  itself  un- 
able, as  yet,  to  cope  with  some  of  the  great  social  and  industrial 
questions  which  face  it.  'I  he  consequence  is  that  the  cause  of 
real  democracy  suffers  and  the  Nation's  progress  is  retarded. 
One  of  the  fundamental  needs  in  the  United  States,  perhai)s  the 
greatest  need,  is  a  realization  of  the  weakness  of  the  government 
from  the  stanrlpoint  of  atlministration,  and  the  attainment  of 
genuine  efficiency  through  thorough  administrative  reorganiza- 
tion and  reform. 


THE  NATIONAL  ADM1NISTR.\TI0N  1 15 


REFERENCES 

Beard.     American  Governmcnl  and  Politics,  Edition  1914,  Chaps.  XI,  XVI, 

XVII,  XVIII,  XIX. 
Fairlie.     National  Administration  of  the  United  States. 
FiNLEY  and  Sanderson.     The  American  Executive  and  Executive  Methods, 

Chap.  XX. 
Hart.     Actual  Government,  Chap.  XVI. 

Reinsch.     Readings  on  American  Federal  Government,  Chap.  IX. 
Young.     The  New  American  Government  and  its  Work. 


CHAPTER  X 

The  Congress  —  General  Observations 

The  legislative  power  of  the  Nation  is  vested  in  the  Congress, 
composed  of  two  houses,  the  Senate  and  the  House  of  Repre- 
sentatives. This  power  is  limited ;  that  is  to  say,  the  field  of 
action  belonging  to  Congress  is  limited  to  those  powers  which  are 
specifically  conferred  by  the  Constitution  or  are  necessarily 
implied.  But  as  previously  pointed  out,  in  discussing  the  rela- 
tion of  the  States  to  the  Nation,  the  power  of  Congress  within 
the  sphere  assigned  to  it  is  absolute.  Its  powers  are  found 
within  the  four  corners  of  the  Constitution  as  interpreted  by 
the  Supreme  Court,  but  in  the  use  of  the  powers  thus  derived 
it  is  without  restraint,  except  as  restrictions  may  be  imposed  by 
the  Constitution  itself.  The  most  fundamental  fact,  however, 
is  not  the  plenary  character  of  the  powers  which  have  been 
granted  to  Congress,  but  the  definite  limitation  of  its  juris- 
diction. It  is  in  no  sense  a  sovereign  body,  and  is  therefore 
radically  different  from  the  English  Parliament  upon  which  it 
was,  in  part,  modeled.  It  may  act  only  when  the  right  to  act 
has  been  conferred  upon  it  by  the  Constitution,  and  if  it  goes 
outside  the  limitations  prescribed,  its  act  is  without  validity. 
The  legislative  department  is  not  superior  to  the  executive 
and  judicial  departments,  but  is  in  theory  coordinate  with 
them.  The  extent  to  which  Congress  is  in  practice  subject  to 
the  judiciary  will  be  discussed  later  in  connection  with  the 
[)ower  of  the  courts. 

The  Powers  of  Congress. — Notwithstanding  the  constitu- 
tional limitations  upon  Congress,  its  authority  is  very  great  anri 
extends  to  a  number  of  questions  that  arc  of  sui)reme  conse- 
quence to  the  entire  Nation.  The  Constitution  confers  upon 
Congress  the  power  to  lay  and  collect  taxes  and  uniform  duties, 
imposts  and  excises;  to  pay  the  debts  of  the  Nation  and  i)ro- 
vi(le  for  its  ctjmmon  defense  and  general  welfare;    to  borrow 

ii6 


THE  CONGRESS  117 

money ;  to  regulate  commerce  among  the  States  and  with 
foreign  nations ;  to  establish  uniform  bankruptcy  and  naturali- 
zation laws;  to  coin  money  and  regulate  its  value;  to  protect 
the  Nation  against  the  counterfeiting  of  its  coin  and  securities ; 
to  fix  the  standard  of  weights  and  measures ;  to  establish  post 
ofiices  and  post  roads ;  to  enact  patent  and  copyright  laws ; 
to  constitute  courts  inferior  to  the  Supreme  Court ;  to  define 
and  punish  piracies  and  felonies  committed  on  the  high  seas, 
and  offenses  against  the  law  of  nations ;  to  declare  war ;  to 
provide  and  maintain  an  army  and  a  navy  and  to  make  rules  for 
their  government ;  and  to  make  all  laws  necessary  and  proper 
for  carrying  into  execution  the  enumerated  powers  and  all 
other  powers  vested  by  the  Constitution  in  the  United  States 
or  in  any  of  its  officers  or  departments. 

In  exercising  some  of  its  powers  Congress  is  subject  to  cer- 
tain limitations,  as,  for  instance,  duties  and  excises  must  be 
uniform  throughout  the  United  States ;  and  in  regulating  in- 
terstate commerce  preference  shall  not  be  given  to  one  State 
over  another.  Moreover,  as  stated  in  Chapter  I,  Congress 
is  subject  to  a  number  of  absolute  prohibitions.  The  powers 
granted  to  Congress  are  far-reaching,  however,  and  have  be- 
come increasingly  so  with  the  rapid  development  of  the  United 
States  in  an  industrial  and  commercial  way.  National  author- 
ity touches  the  individual  citizen  far  more  frequently  now  than 
when  the  government  was  established.  Yet  it  is  to  be  remem- 
bered that  Congress  has  very  little  to  do  with  the  general  civil 
law  of  the  land.  That  is  almost  wholly  under  the  control  of 
the  States.  "  While  Congress,  in  the  exercise  of  such  powers 
as  that  to  regulate  interstate  commerce,  may  originate  rules 
by  which  people  in  general  are  bound  in  their  business  relations, 
such  action  does  not  constitute  a  large  part-of  its  work,  and  its 
legislation  is  ordinarily  regulative  of  governmental  agencies, 
or  in  other  words,  administrative."  ^  That  is  to  say,  questions 
of  administrative  organization  and  policies  chiefly  occupy  the 
attention  of  Congress.  "  The  chief  business  of  Congress  is  the 
appropriation  of  money  for  the  work  of  the  various  depart- 
ments of  government,  the  providing  of  ways  and  means  to 
meet  this  expenditure,  the  creation  of  new  administrative  agen- 
cies, the  maintenance  of  the  national  defense  on  land  and  sea, 

1  Reinsch,  "  American  Legislatures  and  Legislative  Methods,"  p.  3 ;. 


Il8  COMPARATIVE   FREE   GOVERNMENT 

the  control  of  the  various  wards  of  the  nation  —  the  Indians 
and  the  people  of  the  territories  and  dependencies  —  the  regu- 
lation of  economic  activities  as  far  as  they  form  part  of  inter- 
state commerce,  and  the  administration  of  what  remains  to  the 
United  States  government  of  natural  wealth  in  forests  and  other 
public  lands."  ^ 

The  Sessions  of  Congress.  —  Congress  must  assemble  at 
least  once  each  year,  the  time  of  the  meeting,  as  prescribed  in 
the  Constitution,  being  the  first  Monday  in  December.  Con- 
gress may  appoint  another  day,  however,  if  it  wishes  to  do  so. 
During  the  two-year  life  period  of  each  Congress,  therefore, 
there  will  be  held  at  least  two  sessions.  One  is  known  as  the 
long  session  and  the  other  as  the  short  session.  The  long  ses- 
sion is  the  first  regular  session  of  a  new  Congress  and  begins  at 
noon  on  the  first  Monday  in  December  of  each  odd-numbered 
year  and  continues  until  well  along  in  the  year  following.  No 
definite  time  is  prescribed  for  the  adjournment  of  this  session. 
Congress  may  bring  it  to  an  end  at  any  time  which  the  two  houses 
may  agree  upon.  Usually  adjournment  takes  place  about  the 
middle  of  the  year.  It  is  possible,  however,  for  the  long  session 
to  continue  a  full  year;  that  is,  until  the  first  Monday  in  De- 
cember of  the  even-numbered  year  when  the  short  session 
begins.  The  latter  has  a  definite  life  period.  It  must  close 
at  noon  on  the  fourth  of  the  following  March,  when  the  two- 
year  period  which  constitutes  the  full  life  of  a  Congress  comes 
to  an  end. 

Special  or  extraordinary  sessions  of  Congress,  or  of  either 
house,  may  be  called  by  the  President  at  his  discretion.  Special 
sessions  of  the  Senate  have  frequently  been  held.  The  purpose 
of  such  sessions  is  to  pass  upon  apjMiintments  to  oflicc  or  treaties 
submitted  by  the  President.  The  House  of  Representatives 
has  never  been  called  in  extraordinary  session.  There  is  no 
reason  why  it  should  be,  since  there  is  nothing  that  the  House, 
acting  alone,  can  do,  except  vote  impeachments. 

All  bills  and  resolutions  pending  at  the  close  of  a  short  ses- 
sion, that  is,  at  the  close  of  a  Congress,  lapse  or  die.  The  legis- 
lative slate  is  wiped  clean,  and  if  these  measures  are  to  receive 
further  consideration,  ihey  nuist  be  reintroduced  into  the  next 
Congress  and  started  along  the  regular  course  prescribed  by 
'  Kcinsdi,  "  American  Legislatures  and  I.eKislativc  Methods,"  p.  34. 


THE  CONGRESS  II9 

the  rules.  In  the  case  of  the  long  session,  or  a  special  session, 
pending  measures  do  not  lapse,  but*  retain  their  legislative 
status  in  the  session  following.  The  slaughter  of  unpassed 
measures  caused  by  the  expiration  of  a  Congress  is  sometimes 
very  great.  Owing  to  the  large  number  of  bills  and  resolutions 
introduced  during  the  two-year  life  of  a  Congress,  running  from 
twenty  to  thirty  thousand,  there  is  always  a  great  congestion 
of  work  in  the  closing  days.  As  a  natural  result,  oftentimes, 
measures  of  much  concern  to  the  Nation  are  lost  in  this  way, 
with  a  resultant  delay  that  may  be  not  only  objectionable  but 
costly  as  well.  And  measures  that  are  passed  in  the  rush  of  the 
last  days,  it  should  be  noted,  are  likely  to  prove  defective  both 
with  respect  to  content  and  form.  One  of  the  serious  problems 
always  confronting  Congress  is  found  in  the  huge  mass  of  pro- 
posed legislation  that  is  always  pending. 

Election  and  Qualifications  of  Members.  —  The  control  over 
the  election  of  members  of  Congress  is  in  practice  divided  be- 
tween Congress  and  the  State  legislatures,  though  the  ultimate 
authority  rests  with  the  former  if  it  chooses  to  use  its  power. 
The  provision  of  the  Constitution  is  to  the  effect  that  the  times, 
places,  and  manner  of  electing  members  of  Congress  shall  be 
prescribed  by  the  legislatures  of  the  States,  but  that  Congress 
may  alter  such  regulations  or  make  rules  of  its  own,  except  as 
to  the  places  of  choosing  Senators.  The  restriction  contained 
in  the  last  clause  was  made  necessary  by  reason  of  the  fact  that 
Senators  were  to  be  elected  by  the  State  legislatures  which 
would  always  meet  at  their  respective  State  capitals.  Now 
that  Senators  are  chosen  by  popular  vote,  this  restriction  is 
without  force.  By  act  of  Congress  the  election  of  Representa- 
tives for  many  years  has  occurred  on  the  first  Tuesday  after 
the  first  Monday  in  November  of  the  even-numbered  years, 
except  where  a  different  date  has  been  fixed  by  a  State  law 
enacted  prior  to  the  law  of  Congress.  Since  the  adoption  of 
the  seventeenth  amendment  Senators  are  elected  at  the  same 
time  as  Representatives,  whenever  vacancies  in  the  Senate 
are  to  be  filled.  It  will  be  noted  that  in  presidential  years, 
the  time  of  election  of  members  of  Congress  coincides  with 
that  of  the  President.  As  illustrations  of  the  general  super- 
vision Congress  exercises  over  the  election  of  its  members  may 
be  cited   the  act  of   1842,  by  which    single-member  districts 


I20  COMPARATIVE  FREE   GOVERNMENT 

are  required  for  the  election  of  Representatives,  and  the  act 
of  1872,  by  which  written  or  printed  ballots  must  be  used  in 
these  elections.  The  granting  of  suffrage  rests  with  the  States, 
as,  for  the  most  part,  does  the  regulation  of  voting.  With  re- 
spect to  the  latter,  however.  Congress  may  have  a  good  deal 
to  do  through  its  power  to  provide  for  the  purity  of  congres- 
sional elections.  The  right  of  Congress  to  impose  and  enforce 
penalties  for  fraud  and  delinquency  in  such  elections  has  been 
clearly  upheld  by  the  Supreme  Court. ^ 

By  the  Constitution  each  house  is  made  the  judge  of  the 
"  elections,  returns,  and  qualifications  of  its  own  members." 
It  is  for  each  house  to  say  whether  its  members  are  rightfully 
entitled  to  their  seats.  Charges  of  corruption  or  ineligibility 
are  sometimes  made  against  persons  claiming  seats  in  one  house 
or  the  other,  and  are  considered  at  great  length.  In  the  Senate, 
two  of  the  best  known  recent  instances  are  the  cases  of  Reed 
Smoot  of  Utah  and  William  Lorimer  of  Illinois.  Attempt  was 
made  to  prevent  Smoot,  an  apostle  of  the  Mormon  church, 
from  taking  his  seat  on  the  ground  that  he  was  a  polygamist. 
After  a  long  investigation,  the  Senate  recognized  his  right  to 
membership.  In  the  case  of  Lorimer  grave  charges  of  corrup- 
tion were  made  in  connection  with  his  election  by  the  Illinois 
legislature,  and  finally  substantiated  to  the  satisfaction  of  the 
necessary  majority  of  Senators.  By  formal  vote  he  was  ex- 
pelled from  ihe  Senate  and  his  place  declared  vacant. 

Likewise,  in  the  lower  house  the  validity  of  the  election  of 
members  is  frequently  questioned  for  one  reason  or  another. 
Contests  by  rival  claimants  to  positions  are  common.  The 
charge  may  be  fraudulent  voting,  error  in  counting  the  ballots, 
or  other  delinquency  on  the  part  of  election  oflicials.  In  such 
case  one  of  the  House  committees  on  elections  makes  the  neces- 
sary investigation,  reports  its  findings,  and  by  vote  of  the  House 
the  dis[)ute  is  settled.  Inasmuch  as  the  contestants  are  always 
party  oj»ponenls,  there  is  good  opportunity  for  party  spirit  to 
show  itself.  It  is  interesting,  at  least,  to  note  how  frequently 
contests  are  decided  by  a  substantially  strict  party  vote. 

In  1900  a  case  arose  similar  to  that  of  Smoot  in  tlic  Senate. 
The  right  of  Hrigham  If.  Roberts  of  Utah  to  sil  in  the  House 
was  challenged  on  Ihe  ground  that  he  was  a  polygamist.     After 

'  Ex  parte  Sicbold,  100  U.  S.  J71  (1880). 


THE   CONGRESS  121 

a  long  and  bitter  controversy  he  was  excluded  by  vote  of  the 
House,  upon  the  recommendation  of  the  majority  of  the  com- 
mittee to  which  the  matter  had  been  referred  for  investigation. 
The  constitutionahty  of  such  action,  however,  is  doubted  by 
many.  The  question  involved  is  as  to  the  right  of  either  house 
to  add  to  the  qualifications  for  membership  which  have  been 
fixed  in  the  Constitution.  In  the  Roberts  case  the  House  of 
Representatives  did  this,  whereas  in  the  Smoot  case  the  Senate 
refused  to  do  so.  Professor  Beard  says  that  the  correct  answer 
to  this  constitutional  question  seems  to  have  been  made  by 
Senator  Hopkins  in  his  discussion  of  the  Smoot  case.  "  Mr. 
Hopkins  says  that  neither  the  Senate,  Congress,  nor  a  state 
can  add  to  the  quaHfications  prescribed  by  the  constitution; 
that  the  power  given  to  the  Senate  is  not  to  create  Senators,  but 
to  judge  whether  they  have  the  qualifications  prescribed  by  the 
constitution;  that  the  Senate  has  no  constitutional  authority 
to  inquire  into  the  antecedents  and  early  career  and  character 
of  a  Senator  who  applies  for  admission  with  the  proper  creden- 
tials of  his  state ;  that  no  Senator  has  ever  been  denied  a  seat 
in  the  Senate  of  the  United  States  because  of  any  lapse  of  career 
prior  to  his  election  by  the  state ;  and  that  the  Senate  should 
content  itself  with  the  exercise  of  its  power  to  expel  a  member 
for  disorderly  behavior  whenever  his  conduct  is  such  as  to  lower 
the  standard  of  that  body  or  bring  it  into  disrepute."  ^ 

Control  over  Rules  of  Procedure.  —  Each  house  has  authority 
to  determine  its  own  rules  of  procedure,  except  with  respect  to 
a  few  things.  By  provision  of  the  Constitution  a  majority 
in  each  house  is  constituted  a  quorum  to  do  business,  although 
a  smaller  number  may  adjourn  from  day  to  day  and  may  be 
authorized  to  compel  attendance  of  absent  members.  Each 
house  is  required  to  keep  a  journal  of  its  proceedings,  which 
shall  be  published  from  time  to  time.  Publication  is  not  re- 
quired, however,  of  those  parts  which  in  the  judgment  of  the 
house  require  secrecy.  At  the  request  of  one  fifth  of  those 
present,  the  yeas  and  nays  of  the  members  of  either  house  on 
any  question  shall  be  entered  on  the  journal.  This  is  an  im- 
portant rule,  particularly  from  the  standpoint  of  those  who  are 
in  the  minority  upon  any  question.  Neither  house,  during  a 
session  of  Congress,  can  adjourn  for  more  than  three  days  with- 

•  Beard,  "American  Government  and  Politics,"  New  and  Revised  Edition,  p.  240. 


122  COMPARATIVE  FREE   GOVERNMENT 

out  the  consent  of  the  other,  nor  can  it  adjourn  to  any  other 
place  than  that  in  which  the  two  houses  are  sitting. 

Under  this  authority  to  determine  in  general  their  own  pro- 
cedure, complicated  systems  of  rules  have  been  established  in 
both  the  Senate  and  the  House  of  Representatives.  In  each 
the  rules  as  they  are  to-day  have  been  slowly  evolved.  They 
have  been  added  to,  and  modified  from  time  to  time,  to  meet 
new  needs  and  changed  conditions.  As  the  business  of  Con- 
gress has  increased  in  bulk  and  in  difficulty,  the  rules  have 
grown  in  number  and  in  complexity.  They  are  a  logical  out- 
growth of  legislative  conditions.  In  the  Senate  the  rules 
continue  in  force  until  changed,  inasmuch  as  the  Senate  is  a 
continuous  or  permanent  body.  But  in  the  House  of  Repre- 
sentatives a  body  of  rules  is  adopted  at  the  beginning  of  each 
new  Congress.  It  will  be  understood  that  the  entire  membership 
of  the  House  changes  every  two  years  and  therefore  a  new  House 
must  adopt  its  own  set  of  rules.  The  usual  thing  is  for  the 
House,  when  it  assembles,  to  adopt  the  rules  of  the  last  one,  and 
continue  them  in  force  with  few,  if  any,  changes.  Some  of  the 
chief  dilTerences  between  the  procedure  in  the  Senate  and  that 
in  the  House  will  be  noted  later  in  the  detailed  discussion  of 
the  two  houses. 

Compensation  and  Privileges  of  Members.  —  The  compen- 
sation of  its  mcmljcrs  is  fixed  b}'  Congress  itself.  There  is  no 
constitutional  limitation  upon  its  power  in  this  regard.  Public 
opinion,  however,  is  a  powerful  restraining  influence  in  keeping 
congressional  salaries  at  a  reasonably  low  sum.  Before  1855 
members  were  given  a  per  diem  allowance.  By  an  act  of  that 
year  a  salary  system  was  established,  the  sum  allowed  being 
$,^5000  per  year.  In  1S65  this  was  increased  to  $5000,  which 
continued  to  be  the  sum  paid  until  1873,  when  it  was  raised  to 
S7500.  'I'he  terrific  public  protest  which  followed  the  enact- 
ment of  this  "  salary  grab  "  measure,  as  it  was  called,  caused 
its  rcjK-al  at  the  next  session  of  Congress.'  The  $5000  salary 
was  restored  and  continued  in  force  until  igoy  when  it  was 
again  increaserl  to  $7500,  whicli  is  the  sum  at  present  received 
by  both   Senators  and   Representatives,     fn  addition   there  is 

'  The  measure  was  thus  charactcrizcil  hecausc  by  its  terms  the  iTUTease<l  compen- 
sation was  K'ven  to  the  members  of  the  Congress  which  enacted  it;  whereas,  the 
law  of  I  go?  was  made  to  ajiply  only  to  future  Congresses. 


THE  CONGRESS  123 

an  allowance  for  mileage,  of  twenty  cents  per  mile,  clerk  hire, 
and  stationery. 

In  accord  with  the  practice  of  the  English  Parliament  and 
other  legislative  bodies,  members  of  Congress  enjoy  certain 
personal  privileges.  By  provision  of  the  Constitution  they  are 
in  all  cases,  except  treason,  felony,  and  breach  of  the  peace, 
exempt  from  arrest  while  attending  sessions  of  their  respective 
houses  and  in  going  to  and  returning  from  the  sessions ;  and 
cannot  be  questioned  for  any  speech  or  debate  in  either  house, 
except  by  the  authority  of  the  house  itself.  This  exemption 
from  arrest,  however,  does  not  confer  as  great  a  privilege  as 
might  appear  at  first  glance.  Freedom  from  criminal  law  pro- 
cesses is  really  not  granted.  "  The  object  of  the  privilege  from 
arrest  is  to  exempt  members  from  being  interfered  with  by 
judicial  procedure  while  in  the  discharge  of  their  duties.  At 
other  times  and  in  other  respects  they  are  subject  to  the  juris- 
diction of  the  courts  as  fully  as  private  persons.  Indeed,  the 
exemption  is  of  little  practical  value,  as  arrest  or  seizure  of  the 
person  is  no  longer  generally  authorized  except  for  crime,  and 
all  crimes  of  a  serious  nature  are  included  within  the  descrip- 
tion of  treason,  felony  and  breach  of  the  peace."  ' 

The  other  privilege,  which  carries  freedom  from  legal  account- 
ability for  what  members  say  and  do  in  the  discharge  of  their 
legitimate  duties,  is  of  more  obvious  value.  Action  for  libel 
or  slander  cannot  be  brought  for  anything  said  in  Congress. 
This  privilege  extends  to  the  committee  rooms  and  all  official 
pubUcations,  as  well  as  to  the  proceedings  of  the  Senate  or 
House.  Undoubtedly  its  influence  is  wholesome,  although 
at  times  the  privilege  may  be  abused.  It  is  clearly  based  upon 
the  English  practice,  whose  original  purpose  was  to  protect 
members  of  Parhament  against  arrest  for  criticism  of  the  mon- 
arch. The  protection  afforded  Senators  and  Representatives, 
however,  is  not  against  monarchs,  but  constituents. 

One  important  restriction  is  imposed  by  the  Constitution 
upon  members  of  Congress  in  the  provision  that  "  no  Senator  or 
Representative  shall,  during  the  time  for  which  he  was  elected, 
be  appointed  to  any  civil  office  under  the  authority  of  the  United 
States,  which  shall  have  been  created,  or  the  emoluments  whereof 

1  INIcClain,  "  Constitutional  Law  in  the  United  States,"  Second  Edition,  pp.  69- 
70.     See  also  Williamson  v.  Uniied  States,  207  U.  S.  425  U9o8)- 


124  COMPAR.\TIVE   FREE  GOVERNMENT 

shall  have  been  increased  during  such  time  ;  and  no  person  hold- 
ing any  office  under  the  United  States  shall  be  a  member  of  either 
house  during  his  continuance  in  office."  A  recent  illustration 
of  the  effect  of  the  first  part  of  this  provision  is  found  in  the  case 
of  Senator  Knox  of  Pennsylvania  who,  when  he  became  Secre- 
tary of  State  under  President  Taft  in  1909,  could  not  receive 
the  regular  compensation  of  cabinet  officers  because  only  a  short 
time  before,  as  a  member  of  the  Senate,  he  had  voted  to  increase 
the  salaries  of  heads  of  departments  from  $8000  to  $12,000. 
After  the  term  for  which  Mr.  Knox  had  been  elected  to  the 
Senate  had  expired,  he  came  in  for  the  higher  salary.  It  is  to  be 
noted  that  this  restriction  applies  only  to  appointments  to  "  civil " 
offices.  It  does  not  prevent  the  appointment  of  a  Senator  or  a 
Representative  to  a  position  in  the  military  or  naval  service 
which  was  created  or  whose  salary  was  increased  while  he  was  a 
member  of  Congress.  Of  course,  by  the  second  part  of  the 
provision  quoted,  he  is  barred  from  holding  both  offices  at  the 
same  time.  An  interesting  instance  of  an  attempt  to  hold  two 
offices  is  cited  by  Professor  Beard.  A  Representative  from  New 
York  "  was  appointed  major  of  the  militia  under  the  authority 
of  the  United  States  in  the  District  of  Columbia,  and  the  com- 
mittee on  elections  in  the  House  declared  by  unanimous  vote 
that  by  his  acceptance  he  had  forfeited  his  seat."  ' 

It  has  been  held  that  this  constitutional  restriction  does  not 
apply  to  members  of  commissions  appointed  to  make  investiga- 
tions and  negotiate  treaties,  as,  for  illustration,  was  done  in  con- 
nection with  the  treaty  of  peace  with  Spain  in  1898.  The  prac- 
tice of  appointing  members  of  Congress  to  commissions  created 
for  various  purposes  has  become  common,  and  the  question  has 
frequently  arisen  whether  such  appointments  are  permissible 
under  the  Constitution.  The  answer  of  Congress,  which  by 
common  consent  is  to  be  taken  as  correct,  is  that  they  are 
l)ermissible.  The  judiciary  committee  of  the  Senate  in  passing 
upon  the  point  decided  that  "  a  member  of  a  commission  created 
by  law  to  investigate  and  report  but  having  no  legislative, 
judicial,  or  executive  powers,  was  not  an  officer  within  the  mean- 
ing of  the  constil  ulional   iiiliihil  ion." - 

'  Heard,  "Amcri(  an  (JoNcrnment  and  I'olitics,"  New  and  Revised  Kdilion,  p.  233. 
2  Hinds,  "Precedents,"  Vol.  I,  p.    604.     Quoted   in    Beard,    "American   Gov- 
ernment and  Politics,"  p.  234. 


THE   CONGRESS  125 

Theory  of  Representation.  —  It  is  essential  to  note  the  charac- 
ter of  the  representation  afforded  by  Congress.  As  far  as  the 
theory  of  the  written  Constitution  is  concerned,  members  of 
Congress  are  in  no  sense  to  be  looked  upon  as  delegates  of  the 
people.  They  are  representatives,  charged  with  the  legislative 
function.  The  Senators  are  elected  by  the  voters  of  the  States 
and  the  Representatives  by  the  voters  of  districts  within  the 
States,  but  there  is  no  constitutional  method  by  which  their 
constituents  can  give  them  instructions  and  see  that  these  in- 
structions are  carried  out.  The  voters  have  no  grip  upon  them 
after  they  are  once  elected.  As  far  as  their  constituents  are 
concerned,  members  of  Congress,  during  their  term  of  office, 
may  do  as  they  please.  It  is  only  in  case  they  seek  reelection 
that  the  voters  have  the  chance  to  punish  or  reward.  They 
possess  unlimited  power  of  representation.  As  Professor  Ford 
puts  it,  for  the  purposes  of  government  they  are  the  people 
themselves  and  it  was  to  "  protect  them  in  the  complete  exercise 
of  this  representative  capacity  "  that  the  Constitution  provided 
that  "  for  any  speech  or  debate  in  either  house  they  shall  not  be 
questioned  in  any  other  place."  ^ 

It  was  not  a  government  by  the  people,  therefore,  that  was 
set  up  by  the  Constitution.  Government  controlled  by  public 
opinion  was  far  from  the  original  intention.  Democracy  was  not 
a  favored  type  of  government  at  the  time  the  Constitution  was 
formed.  "  The  desire  was  not  to  enable  the  people  to  control 
the  government,  but  to  enable  the  government  to  control  the 
people."  - 

Here  again,  however,  the  working  constitution  of  the  present 
day  differs  a  good  deal  from  the  written  document.  Members 
of  Congress  now,  under  the  party  system,  are  not  representatives 
in  the  strict  sense  planned  for  by  the  constitution  makers.  They 
bear  the  character  of  delegates  to  a  greater  or  less  degree.  They 
are,  in  fact,  more  or  less  definitely  restrained  and  controlled 
by  public  opinion.  Legally  they  are  independent  of  such  con- 
trol ;  actually  they  are  held  in  check  by  it.  In  the  Nation,  as 
well  as  in  the  States,  democracy  has  gone  forward  with  tremen- 
dous strides  since  1787.  Particularly  in  recent  years  has  the 
advance  been  rapid.  The  actual  constitution  is  clearly  under- 
going important  changes.     Whatever  the  legal  authority  of 

1  Ford,  "Rise  and  Growth  of  American  Politics,"  p.  63.  "^ Ibid.,  p.  64. 


126  COMPARATIVE   FREE   GOVERNMENT 

Senators  and  Representatives  may  be,  the  will  of  the  people, 
the  power  of  public  opinion,  can  no  longer  be  ignored.  There 
is  slowly  being  evolved  an  unwritten  constitutional  requirement 
which  imposes  upon  members  of  Congress  a  direct  responsibility 
to  the  people  and  which  binds  them  by  unseen,  intangible  bonds 
to  carry  out  the  pubUc  will.  Constitutional  forms  are  the  same, 
but  the  spirit  is  changing.  For  good  or  for  ill,  the  Nation  is 
moving  on  toward  a  larger  and  ever  larger  democracy. 

REFERENCES 
(For  References,  see  Chaps.  XI  and  XIII.) 


CHAPTER  XI 

The  Senate 

The  Senate  is  the  smaller  and  in  many  respects  the  more 
interesting  as  well  as  the  more  powerful  of  the  two  houses  of 
Congress.  In  organization  and  procedure  it  differs  radically 
from  the  House  of  Representatives.  Moreover,  its  constitu- 
tional position  is  somewhat  peculiar  inasmuch  as  it  exercises 
executive  and  judical  functions  as  well  as  legislative,  notwith- 
standing the  general  acceptance  and  application  of  the  separa- 
tion of  powers  theory.  It  has,  perhaps,  maintained  the  position 
and  powers  assigned  to  it  by  the  Constitution  more  successfully 
than  has  any  other  branch  of  the  government.  Beyond  doubt, 
in  spite  of  many  shortcomings,  it  has  proven  itself  one  of  the  most 
efficient  parts  of  the  governmental  machine. 

The  Senate  consists  of  two  Senators  from  each  of  the  States, 
its  membership  numbering  ninety-six.  To  be  eligible  for  the 
Senate  a  person  must  be  thirty  years  of  age,  an  inhabitant  of 
the  State  from  which  he  is  chosen,  and  have  been  a  citizen 
of  the  United  States  for  at  least  nine  years.  The  term  of  office 
is  six  years,  one  third  of  the  Senators  being  chosen  every 
two  years,  thus  making  the  Senate  essentially  a  permanent 
body.  The  salary  is  $7500  per  year.  In  addition  each  mem- 
ber is  given  mileage  and  an  allowance  for  clerk  hire  and  for 
stationery. 

The  method  of  choosing  Senators  prescribed  by  the  Constitu- 
tion and  followed  without  change  until  the  adoption  of  the  seven- 
teenth amendment  in  1913  was  election  by  the  legislatures  of 
the  various  States.  Under  the  seventeenth  amendment  election 
is  by  direct  vote  of  the  people  of  the  States.  The  framers  of 
the  Constitution  were  unwilling  to  have  both  branches  of  the 
national  legislature  chosen  by  popular  vote,  just  as  they  were 
unwilling  to  provide  for  the  popular  election  of  the  President. 
It  was  their  belief  that  one  branch  of  Congress,  at  least,  should 

127 


128  COMPARATIVE   FREE   GOVERNMENT 

be  elected  by  an  indirect  method  so  that  it  would  not  be  subject 
to  popular  clamor  and  violent  changes  of  public  sentiment,  and 
thus  would  be  free  to  stand  out  against  hasty  and  ill-advised 
action  by  the  direct  representatives  of  the  people  in  the  other 
house.  The  Senate  was  to  be  the  conservative  element  in  legis- 
lative action.  It  was  designed  to  be,  in  part,  a  check  upon  the 
House  and  serve  as  a  sort  of  balance  wheel*  to  keep  the  legis- 
lative machine  running  smoothly  and  at  a  reasonable  speed. 
It  was  designed,  also,  to  be  a  check  upon  the  President,  and 
thus  help  protect  the  government  from  executive  encroachments. 
By  giving  to  the  State  legislatures  the  right  to  select  the  Sena- 
tors it  was  believed  that  the  Senate  would  be  composed  of  men 
who  were  carefully  chosen  with  respect  to  their  ability,  patriot- 
ism, property,  and  freedom  from  radicalism  and  dangerous  popu- 
lar control.  With  men  of  this  character  in  the  Senate  the 
danger  of  excessive  democracy,  anticipated  in  connection  with 
the  House  of  Representatives,  and  the  danger  of  monarchic 
power,  feared  in  connection  with  the  presidency,  would  alike 
be  minimized.' 

Furthermore,  it  should  be  kept  in  mind  that  the  whole  plan 
of  the  Congress,  as  it  was  finally  worked  out,  was  the  result  of 
a  compromise  between  antagonistic  elements  in  the  constitu- 
tional convention.  There  was  a  great  deal  of  jealousy  among 
the  States.  Particularly  was  this  shown  in  the  constant  bicker- 
ing between  the  small  and  the  large  States.  The  former  sought 
to  have  all  the  States  equally  represented  in  both  houses  of 
Congress,  regardless  of  size  and  population.  The  latter  sought 
to  have  the  representation  in  both  houses  based  on  population, 
thus  giving  absolute  popular  control  of  Congress.  The  question 
was  del)ated  at  great  length,  but  neither  side  would  yield  its 
position  entirely,  and  a  compromise  was  the  result.  Equal 
representation  of  the  States  in  the  Senate,  without  respect  to 
population,  and  unequal  representation  in  the  House  based  on 
population,  were  provided  for.  Thus  each  of  the  States  was 
given  two  Senators,  but  their  rei)resentalic)n  in  thi'  lower  house 
in  the  first  Congress  varied  from  one  to  ten.  With  the  great 
increase  in  population  since  that  time  the  variation  has  become 
much  larger,  ranging  from  one  to  thirty-seven  In  jqi2. 

'  For  a  discussion  of  the  aims  of  the  Senate  as  intended  l\v  the  framcrs  of  the 
Constitution,  see  The  Federalist,  Nos.  62-66. 


THE   SENATE  129 

Representation  of  States  and  Sections.  —  One  other  fact  of 
great  significance  should  be  noted  in  connection  with  the  com- 
position of  the  Senate.  It  was  designed  to  represent,  not  the 
people  of  the  States,  but  the  States  as  such,  that  is,  as  political 
entities.  It  was  intended  to  be  a  kind  of  Council  of  States, 
whose  members  should  owe  their  election  to  the  controlling  ele- 
ment in  the  State  governments,  namely,  the  legislatures  and 
not  directly  to  those  exercising  the  right  of  suffrage.  This  was 
the  constitutional  theory  upon  which  the  Senate  was  based 
until  the  adoption  of  the  amendment  providing  for  the  popular 
election  of  Senators.  In  the  actual  work  of  the  Senate  the 
theory  has  been  of  little  consequence,  since  the  voting  in  the 
Senate  has  not  been  by  States.  By  the  Constitution  each 
Senator  is  given  one  vote  and  it  not  infrequently  happens  that 
the  Senators  from  a  State  vote  on  opposite  sides  of  a  question, 
thus  canceling  their  votes  and,  as  far  as  the  voting  itself  is 
concerned,  depriving  their  State  of  any  real  part  in  the  deter- 
mination of  the  question  in  hand.  To  a  large  extent  this  is 
due  to  the  conflicting  interests  of  the  political  parties.  A  State 
is  likely  to  be  controlled  by  one  party  at  one  senatorial  election 
and  by  another  party  at  the  next ;  hence  upon  almost  all  party 
questions  the  votes  of  the  Senators  from  that  State  would 
cancel  each  other.  Upon  a  great  many  questions,  however, 
party  lines  are  not  followed,  and  it  frequently  happens  that 
Senators  of  the  same  party  vote  against  each  other.  It  is  clear, 
therefore,  that  this  theory  of  the  Constitution  —  that  the  Senate 
represents  the  States  as  governmental  organizations  and  not 
the  people  of  the  States  —  has  little  practical  effect.  More- 
over, experience  has  shown  that  the  jealousy  of  the  small  States 
against  the  large,  as  revealed  in  the  constitutional  convention, 
was  really  without  foundation.  They  have  not  at  any  time 
been  in  danger.  Sectional  interests  have  frequently  caused  the 
Senators  from  a  number  of  States  to  act  together,  but  in  this 
large  and  small  States  have  been  influenced  alike ;  in  no  in- 
stance have  the  former  combined  against  the  latter.  With  the 
adoption  of  the  seventeenth  amendment  this  old  theory  was  in 
eft'ect  abandoned. 

Of  greater  interest  and  importance  than  this  theory  of  the 
representation  of  States  is  the  fact  which  President  Wilson  so 
forcefully  points  out,  that  the  thing  which  gives  the  Senate 


130  COMPARATIVE  FREE  GOVERNMENT 

"  its  real  character  and  significance  as  an  organ  of  constitu- 
tional government  is  the  fact  that  it  does  not  represent  popula- 
tion, but  the  regions  of  the  country,  the  political  units  into 
which  it  has,  by  our  singular  constitutional  process,  been  cut 
up.  The  Senate,  therefore,  represents  the  variety  of  the  nation 
as  the  House  does  not.  It  does  not  draw  its  membership  chiefly 
from  those  parts  of  the  country  where  population  is  most  dense, 
but  draws  it  in  equal  parts  from  every  state  and  section."  ^ 
The  artificial  character  of  many  of  the  States,  says  this  eminent 
authority,  the  fact  that  they  are  not  "  real  communities,  with 
distinct  historical  characteristics,  a  distinct  social  and  economic 
character  of  their  own,  as  most  of  the  older  states  are,"  is  not  of 
material  consequence.-  The  principle  which  is  of  really  great 
importance  is  that  "  regions  must  be  represented,  irrespective 
of  population,  in  a  country  physically  as  various  as  ours  and 
therefore  certain  to  exhibit  a  great  variety  of  social  and  eco- 
nomic and  even  political  conditions.  It  is  of  the  utmost  im- 
portance that  its  parts  as  well  as  its  people  should  be  repre- 
sented ;  and  there  can  be  no  doubt  in  the  mind  of  any  one  who 
really  sees  the  Senate  of  the  United  States  as  it  is  that  it  repre- 
sents the  country,  as  distinct  from  the  accumulated  population 
of  the  country,  much  more  fully  and  much  more  truly  than  the 
House  of  Representatives  does."  ^  Due  to  the  concentration 
of  population  in  certain  sections,  the  House  of  Representatives 
does  not  represent  the  Nation  as  satisfactorily  as  it  once  did. 
It  tends  to  represent  "  particular  interests  and  points  of  view, 
to  be  less  catholic  and  more  and  more  specialized  in  its  view  of 
national  affairs.  It  represents  chiefly  the  East  and  the  North. 
The  Senate  is  its  indispensable  offset,  and  speaks  always  in  its 
make-up  of  the  size,  the  variety,  the  heterogeneity,  the  range 
and  breadth  of  the  counlry,  which  no  community  or  group  of 
communities  can  adequately  represent.  It  cannot  be  repre- 
sented by  one  sample  or  by  a  few  samples ;  it  can  be  ro]:)rcscnted 
only  by  many,  —  as  many  as  it  has  j^arts."  ' 

Results  of  Indirect  Election.  —  The  hopes  of  the  constitution 
makers  with  respect  to  the  method  of  choosing  Senators  have 
by  no  means  been  realized.  Tiir  Slnlc  legislatures  have  not 
acted  from  the  motives  and  in  the  manner  anticipalcfl.     The 

'  Wilson,  "Constitutional  (lovcrnim  iiL  in  liie  United  Stales,"  p.  11.1. 
''Ibid.,  p.  115.  ^lOid.,  I).  iiO.  '^Ibid.,  p.  ii7- 


THE   SENATE  131 

personnel  of  the  Senate  has  by  no  means  been  always  of  the 
character  desired  by  the  framers  of  the  Constitution.  For  the 
most  part  this  has  been  due  to  party  interests  and  influence. 
Places  in  the  Senate,  next  to  the  presidency  itself,  became  the 
great  prizes  for  which  party  leaders  struggled.  The  control 
of  the  Senate  has  almost  from  the  beginning  been  one  of  the 
great  objectives  of  the  leading  parties.  The  result  has  been 
that  usually  the  election  of  a  Senator  was  the  occasion  for  a 
bitter  party  struggle  over  the  choice  of  members  of  the  State 
legislature,  in  which  the  function  of  the  legislature  as  a  depart- 
ment of  the  State  government  was  lost  sight  of  and  the  local 
interests  of  the  State  were  sacrificed.  Very  frequently  the  con- 
tests over  the  senatorship  were  long  drawn  out,  lasting  many 
weeks,  to  the  serious  detriment  of  the  regular  work  of  the  legis- 
lature. Sometimes  deadlocks  occurred  and  the  legislatures 
were  unable  to  elect.  The  results  of  these  long-continued 
contests  were  naturally  bad.  Not  only  were  the  States  in  which 
they  occurred  for  the  time  deprived  of  their  full  representation 
in  the  Senate,  but  abundant  opportunity  was  afforded  for 
corrupt  practices  on  the  part  of  dishonest  party  leaders  and  the 
representatives  of  big  business  interests  seeking  control  over 
congressional  legislation.  Some  of  the  most  notorious  political 
scandals  in  the  country's  history  have  grown  out  of  deadlocks 
in  senatorial  elections.  As  a  consequence  of  this  system  of 
election,  as  might  be  expected,  men  have  sometimes  acquired 
places  in  the  Senate  who  were  unworthy  of  positions  of  such 
high  honor  and  vast  influence.  Inevitably  the  Senate  lost 
standing  in  the  eyes  of  the  people  and  the  belief  grew  strong 
that  a  change  in  the  method  of  choosing  Senators  was  neces- 
sary. The  outcome  of  the  agitation,  which  continued  through 
many  years,  was  the  seventeenth  amendment.  Whether  the 
general  character  of  the  Senate  as  a  legislative  body  will  be  im- 
proved by  the  system  of  popular  election,  time  alone  can  tell. 
The  growing  spirit  of  democracy  made  the  change  inevitable, 
sooner  or  later.  But  whatever  the  ultimate  effect  may  be  upon 
the  Senate,  senatorial  deadlocks  with  their  peculiar  evils  and 
dangers  are  things  of  the  past.  And  perhaps  more  important 
still,  the  legislatures  of  the  States  are  now  free  from  any  official 
connection  with  national  politics  and  may,  if  they  choose,  devote 
themselves  exclusively  to  State  affairs. 


132  COMPAR.\TIVE   FREE   GOVERNMENT 

The  point  of  the  last  statement  deserves  special  emphasis 
for  the  method  of  electing  Senators  by  State  legislatures  has 
tended,  under  the  party  system,  to  paralyze  the  political  life  of 
the  States.  That  is,  it  has  not  been  possible  for  the  people  of 
the  various  States  to  divide  upon  local  and  State  questions  and 
settle  them  upon  their  merits,  because  all  the  time  the  partisan 
demands  of  national  politics  interfered.  In  choosing  members 
of  the  State  legislatures,  the  voters  almost  always  had  to  keep 
in  mind  the  choice  of  United  States  Senators.  As  a  result,  not 
infrequently  there  was  a  conflict  of  interest  under  which  the 
voter  must  sacrifice  his  convictions  either  upon  vital  questions 
of  State  policy  or  upon  the  election  of  Senators.  Moreover,  in 
order  to  maintain  the  vast  party  organizations  and  keep  them 
in  good  running  order,  practically  all  local  and  State  offices, 
however  insignificant,  have  been  made  the  objects  of  partisan 
contests.  Thus  the  control  of  town,  township,  county,  city, 
and  State  governments  alike  have  been  hopelessly  bound  up 
with  the  control  of  national  politics.  This  was  not  what  the 
framers  of  the  Constitution  either  desired  or  expected ;  quite 
the  contrary,  in  fact.  But  it  was  inevitable  under  the  consti- 
tutional requirement  that  Senators  be  chosen  by  the  State 
legislatures.  The  breaking  of  this  tie  between  the  State  and 
national  governments  by  the  seventeenth  amendment  makes 
possible  the  growth  of  State  political  parties  and  the  develop- 
ment of  real  State  politics.  The  ultimate  effect  should  be  whole- 
some.    It  has  opened  the  way  for  real  progress  by  the  States. 

The  Senate's  Organization  and  Committees.  —  In  a  general 
way  the  organization  of  the  Senate  is  similar  to  that  of  the 
House  of  Representatives,  although  there  are  points  of  differ- 
ence which  are  of  great  importance.  By  provision  of  the  Con- 
stitution the  Vice  President  of  the  United  States  is  the  Senate's 
[)residing  officer,  bearing  the  title.  President  of  the  Senate. 
He  has  no  vote  upon  pending  questions  except  in  case  of  a  tie, 
when  he  may  cast  the  deciding  vote.  Now  and  then  this  con- 
stitutional privilege  has  been  of  real  conseciuence  and  has  en- 
abled the  Vice  President  to  have  an  important  i)art  in  the  action 
of  the  Senate.  Ordinarily,  however,  he  has  little  to  do  with 
(he  course  of  legislation  except  as  he  may  have  personal  in- 
fluence with  individual  Senators.  As  presiding  officer  of  tfie 
Senate  he  is  purely  a  ])arliamenlary  olficer  and  is  sui)|)ose(l  to 


THE   SENATE  1 33 

be  entirely  impartial.  His  position  is  one  of  great  dignity  and 
high  social  standing,  but  of  insignificant  powers. 

All  the  other  officers  are  chosen  by  the  Senate.  These  in- 
clude the  president  pro  tempore  who  presides  in  the  absence  of 
the  Vice  President,  the  secretary,  chief  clerk,  legislative  and 
reading  clerks,  sergeant-at-arms,  doorkeeper,  and  all  the  many 
assistants  to  these  officers  whose  employment  is  made  necessary 
by  the  pressure  of  the  Senate's  work.  In  the  appointment  of 
these  officers  party  lines  are  observed.  All  the  higher  positions 
are  held  by  men  who  are  members  of  the  party  that  is  dominant 
in  the  Senate ;  many  of  the  less  important  places  are  by  com- 
mon practice  given  to  the  minority  party.  Some  of  them  pay 
rather  large  salaries  and  are  vigorously  sought  by  faithful  party 
workers  who  feel  that  the  time  for  their  reward  has  come. 

A  large  part  of  the  Senate's  most  important  work  is  done 
through  its  standing  committees  of  which  sixty-five  or  more  are 
regularly  maintained.  All  matters  of  legislation  are  referred 
to  appropriate  committees  for  investigation  and  report  before 
they  are  given  consideration  on  the  floor  of  the  Senate.  It  is 
in  the  committees,  in  fact,  that  usually  the  real  work  of  legis- 
lation is  done,  although  the  Senate  is  not  so  completely  domi- 
nated by  the  committee  system  as  is  the  House  of  Representa- 
tives. The  committees  have  no  constitutional  basis,  but  are 
provided  for  simply  by  the  rules  of  the  Senate.  Among  those 
commonly  considered  of  most  consequence  may  be  mentioned 
the  committees  on  Finance,  Appropriations,  Judiciary,  Inter- 
state Commerce,  Foreign  Relations,  and  Military  Affairs.  A 
number  of  the  committees  are  of  very  slight,  if  any,  importance 
and  are  maintained  for  the  purpose,  apparently,  of  providing 
as  many  chairmanships  and  committee  clerks  as  possible, 
together  with  adequate  ofl&ce  accommodations  for  their  members. 
The  power  of  the  leading  committees  is  very  great  under  the 
Senate's  rules  of  procedure  and  the  fate  of  important  legislative 
proposals  is  usually  determined  by  committee  action.  Some 
of  the  gravest  criticisms  of  both  houses  of  Congress  are  to  be 
made  in  connection  with  the  committee  system,  but  discussion 
of  the  general  effects  of  that  system  will  be  deferred  until  after 
the  organization  of  the  House  of  Representatives  has  been 
considered.  It  is  sufficient  here  to  note  the  central  position  of 
the  committees  in  the  work  of  the  Senate. 


134  COMPARATIVE  FREE   GOVERNMENT 

The  appointment  of  committees  in  the  Senate  is  nominally 
made  by  the  Senate  itself ;  actually  it  is  made  by  the  party  cau- 
cuses through  a  committee  on  committees  chosen  by  the  caucuses 
for  the  purpose  of  assigning  Senators  to  the  various  committees. 
The  recommendations  of  this  committee  are  almost  always  ap- 
proved by  the  Senate,  although  the  Senate,  of  course,  could  reject 
such  recommendations  if  it  should  desire  to  do  so.  The  majority 
party  always  controls  each  committee  by  a  safe  margin.  The 
committees  vary  in  size  from  three  to  seventeen  members. 
The  most  important  ones  have  usually  fourteen  or  fifteen  mem- 
bers. The  powerful  committees  on  Finance  and  Foreign  Rela- 
tions each  have  fourteen  members,  nine  from  the  majority  party 
and  five  from  the  minority.  In  the  case  of  committees  whose 
work  is  non-partisan  in  character  the  minority  party  has  a 
larger  proportionate  representation.  In  selecting  both  the 
majority  and  the  minority  members  the  rule  of  seniority  is 
observed ;  that  is,  the  chairmanships  and  ranking  positions  on 
all  committees  are  usually  given  to  those  Senators  who  have 
served  longest  in  the  Senate,  and  the  ranking  of  the  members 
of  any  particular  committee  is  determined  by  the  period  of 
their  service  on  that  committee.  Occasionally  there  is  some 
variation  from  this  rule,  but  not  often.  It  is  plain  that  this 
practice  is  not  always  in  the  interest  of  the  best  legislative  work. 
It  by  no  means  follows  that  the  man  who  has  served  longest  on 
a  committee  is  the  best  man  for  the  position  of  chairman.  More- 
over, the  rule  tends  strongly  to  place  the  control  over  all  im- 
portant legislation  in  the  hands  of  a  small  number  of  Senators 
and  makes  possible  the  building  up  of  an  organization  or  machine 
among  the  majority  leaders  which  is  all  but  invincible.  The 
wisdom  which  comes  from  e.xi")erience  in  legislative  work  is  to 
be  cherished  and  utilized  to  the  utmost,  but  mere  length  of 
service  is  not  necessarily  a  true  measure  of  either  experience  or 
ability.  There  can  be  little  doubt  that  greater  freedom  in  the 
selection  of  committee  members  than  the  seniority  rule  permits 
would  be  in  the  interest  of  better  legislation. 

The  Party  Caucus.  —  A  vital  jjart  of  the  Senate  organization 
whose  work  may  at  times  be  of  supreme  concern  to  the  nation 
is  the  party  caucus,  to  which  reference  has  already  been  made. 
The  minority  f)arty,  as  well  as  the  majority  jxirly,  has  its  caucus 
in   which    fri''|ucntly    its   position    u|)oii    important   projects  of 


THE  SENATE  135 

legislation  is  determined.  But  it  is  the  caucus  of  the  majority 
party  whose  action  is  of  chief  interest  to  the  nation.  It  is 
through  the  caucus  that  the  majority  leaders  seek  to  line  up 
their  party  associates  in  support  of  party  measures  so  that 
there  may  be  no  question  as  to  the  passage  of  these  measures 
when  they  come  up  for  action  in  the  Senate.  The  caucus  is  a 
voluntary,  unofficial  body,  and  its  action  is  without  legal  force. 
The  obligation  of  its  members  to  abide  by  the  decisions  reached 
is  wholly  moral.  The  Senator  who  refuses  to  enter  the  caucus, 
or  having  entered  reserves  the  right  to  act  independently,  is  in 
no  way  bound  by  its  action.  The  meetings  of  the  caucus  are 
secret.  The  great  importance  which  at  times  attaches  to  it  is 
easily  comprehended  when  it  is  noted  that  the  actual  deter- 
mination of  the  content  of  legislative  measures  may  be  trans- 
ferred from  the  Senate  to  the  party  caucus.  A  good  illustration 
of  this  is  found  in  the  action  of  the  Democratic  caucus  upon  the 
Underwood-Simmons  tariff  bill  at  the  special  session  of  Congress 
called  by  President  Wilson  in  April,  19 13.  After  the  measure 
had  been  received  from  the  House  of  Representatives  and  had 
been  considered  in  detail  by  the  majority  members  of  the 
Finance  Committee  of  the  Senate,  it  was  submitted  to  the 
Democratic  caucus.  There  it  was  taken  up  section  by  section, 
discussed  at  length,  modified  in  minor  ways,  voted  upon,  and 
approved.  All  this  was  done  to  assure  for  it,  if  possible,  the 
solid  Democratic  support.  After  it  had  been  approved  by  the 
caucus  it  was  submitted  to  the  entire  Finance  Committee  where, 
by  a  strict  party  vote,  it  was  recommended  to  the  Senate  for 
passage.  Of  course  this  committee  action  was  a  mere  formality, 
made  necessary  by  the  Senate  rules  which  require  that  all  bills 
be  considered  in  committee.  A  long  debate  in  the  Senate  en- 
sued, but  to  no  purpose  whatever,  except  to  give  the  minority 
members  the  opportunity  to  express  their  opposition.  With  the 
exception  of  two  or  three  Senators  who  refused  to  be  bound  by 
the  caucus  with  respect  to  particular  items  in  the  bill,  the 
entire  Democratic  vote  was  pledged  in  advance  and  the  leaders 
in  charge  of  the  measure  were  reasonably  sure  of  its  passage. 
The  action  of  the  Senate  was  essentially  a  formality ;  the  vital 
decision  was  reached  in  the  caucus. 

Objections  to  the  caucus  method  of  legislation  arc  obvious 
and  need  not  be  discussed  at  length.     The  substitution  of  irre- 


136  COMPARATIVE  FREE   GOVERNMENT 

sponsible  group  action  in  a  secret  caucus  for  public  personal 
responsibility  on  the  floor  of  the  Senate  is  of  doubtful  wisdom. 
Publicity  with  respect  to  all  the  processes  of  legislation  is  desir- 
able. It  is  true  that  the  action  of  the  caucus  fixes  rather 
definitely  the  responsibility  of  the  dominant  party,  a  fact  of 
real  significance,  but  regardless  of  this  the  caucus  is  not  an 
institution  that  is  popular  either  in  or  out  of  Congress. 

Freedom  of  Debate.  —  With  respect  to  its  rules  of  procedure 
the  Senate,  though  similar  in  the  main  to  the  House  of  Repre- 
sentatives and  other  legislative  assemblies,  is  exceptional  in  one 
important  thing.  There  is  unlimited  freedom  of  debate.  No 
closure  rule  exists.  Each  Senator  is  free  to  debate  a  measure 
as  long  as  he  wishes.  In  this  is  found  the  greatest  contrast 
between  the  Senate  and  the  House  of  Representatives  in  which 
a  rigid  control  over  debate  is  exercised.  The  Senate  is  almost 
alone  among  the  great  legislative  bodies  of  the  world  in  its 
refusal  to  provide  some  system  of  closure.  In  most  countries 
it  has  been  found  necessary  to  limit  debate  both  for  the  purpose 
of  expediting  business  and  preventing  obstructive  practices  on 
the  part  of  the  minorities.'  It  is  comparatively  easy  in  the 
Senate  for  a  filibuster  to  be  effective.  This  is  particularly  true 
in  the  closing  days  of  the  life  of  a  Congress.  Undoubtedly  the 
nation  suffers  at  times  from  the  unrestricted  discussion.  This 
procedure  has  been  subjected  to  very  severe  criticism.  It  is 
frequently  referred  to  as  "  legislation  by  unanimous  consent," 
manifestly  a  difficult  kind  to  obtain.  But  one  exceedingly 
valuable  result  of  this  freedom  is  to  be  noted.  There  is  real 
debate  in  the  Senate,  and  at  times  debate  of  very  high  char- 
acter. In  the  House  of  Representatives,  for  the  most  part, 
there  is  no  debate  worthy  of  the  name.  It  is  in  the  Senate 
ordinarily  that  the  publicity  which  comes  from  exhaustive  dis- 
cussion is  given  to  j)encHng  legislation.  Delays,  of  course,  are 
frequent;  and  sometimes  delays  which  are  wearisome  to  the 
Nation.  But  the  delays  in  the  Senate  tend  to  counteract  the 
haste  and  carelessness  which  only  too  frequently  characterize 
the  actions  of  the  lower  house. 

Moreover,  the  Senate's  practice  gives  opjiort unity  to  indi- 
vidual Senators  to  show  the  stuff  that  is  in  them  and  to  develop 
into  effective  debaters.     Undoubtedly  it  helps  to  make  service 

'  Lowell,  "The  Government  of  England,"  Vol.  1,  p.  392. 


THE   SENATE  137 

in  the  Senate  attractive  to  men  of  ability,  although  it  is  every- 
where recognized  that  a  Senator's  influence  upon  the  work  of 
the  Senate  is  by  no  manner  of  means  dependent  upon  his  ora- 
torical powers.  Many  of  the  strongest,  most  influential  men 
in  the  Senate  have  been  men  without  forensic  ability ;  indeed, 
some  of  them  seldom,  if  ever,  took  part  in  the  general  discussion 
of  measures  on  the  open  floor  of  the  Senate.  Yet  it  cannot  be 
denied  that  the  ability  to  take  care  of  one's  self  in  the  rough  and 
tumble  of  debate  is  a  thing  of  great  value  and  under  the  Senate's 
rules  abundant  opportunity  is  afforded  for  its  display.  In  the 
House  of  Representatives  this  opportunity  is  for  the  most  part 
lacking.  This  fact  undoubtedly  explains  in  part  why  service 
in  the  Senate  is  generally  looked  upon  with  greater  favor  by 
public  men  than  service  in  the  lower  house.  There  is  freedom 
to  grow  in  the  Senate  and  the  man  with  the  capacity  for  states- 
manship is  sure  of  his  chance. 

The  Senate's  Legislative  Position.  —  As  a  legislative  body 
the  Senate  has  no  peculiar  constitutional  position  or  powers. 
It  is  coordinate  with  the  House  of  Representatives.  It  is  simply 
the  second  chamber  of  the  national  legislature  and,  with  one 
exception,  has  exactly  the  same  legislative  powers  as  the  other 
chamber.  That  exception  is  in  connection  with  bills  for  raising 
revenue  which,  by  constitutional  provision,  must  originate  in 
the  House  of  Representatives.  In  giving  the  lower  house  this 
special  power  the  constitution  makers  were  clearly  following 
English  experience.  The  struggle  for  political  liberty  in  Eng- 
land centered  around  the  struggle  for  the  control  of  the  public 
purse,  and  one  of  the  fundamentals  of  the  English  Constitution 
is  that  this  control  shall  be  exercised  by  the  representatives  of 
the  people  in  the  House  of  Commons.  In  the  American  colonies, 
likewise,  the  struggle  for  the  control  of  taxation  by  the  repre- 
sentatives of  the  people  was  long  and  bitter.  Hence  it  was 
natural  that  the  principle  of  popular  control  over  national  ta.xa- 
tion  should  be  embodied  in  the  Constitution.  The  House  of 
Representatives  was  made  elective  by  the  people  directly,  or 
rather  by  that  portion  of  the  people  upon  whom  the  right  of 
suffrage  was  conferred  by  the  States.  The  Senate  was  made 
elective  by  the  State  legislatures,  thus  being  only  indirectly 
representative  of  the  people.  Therefore  the  House  of  Repre- 
sentatives should  have  the  initiative  in  the  raising  of  revenue 


138  COMPARATIVE   FREE   GOVERNMENT 

as  a  safeguard  of  the  people's  liberties  and  rights  of  property. 
But  this  constitutional  provision  is  of  only  nominal  significance 
in  actual  practice,  for  in  passing  upon  revenue  bills  the  Senate, 
by  provision  of  the  Constitution,  may  "  propose  or  concur  with 
amendments  as  on  other  bills."  This  right  of  amendment  gives 
to  the  Senate  practical  equality  with  the  House,  for  by  amend- 
ment a  bill  expressing  the  desires  of  the  Senate  may  be  substi- 
tuted for  one  passed  and  submitted  to  it  by  the  House.  The 
House  must  take  the  lead,  nominally,  in  drafting  revenue  legis- 
lation, for  the  letter  of  the  Constitution  must  be  observed; 
but  that  does  not  prevent  the  Senate,  if  it  wishes,  from  framing 
through  its  Finance  committee  a  measure  of  its  own  and  by 
"  amendment  "  substituting  it  for  the  House  bill  at  the  proper 
time.  Hence  this  apparent  privilege  of  the  House  of  Repre- 
sentatives amounts  to  little  or  nothing  in  actual  practice  and 
the  powers  of  the  two  houses  with  respect  to  legislation  are  in 
reality  equal.  No  bill  can  become  a  law  without  the  approval 
of  both.  This  equality,  it  should  be  noted,  is  theoretical  rather 
than  actual,  for  the  Senate  not  infrequently  is  able  to  force  its 
will  upon  the  lower  house.  The  reasons  for  this  will  be  sug- 
gested in  the  discussion  of  the  general  character  and  success  of 
the  Senate. 

It  is  a  signillcanl  fact  that  at  first  the  Senate  did  not  make 
use  of  its  constitutional  privileges  with  respect  to  legislation. 
Its  consent  was  necessary,  of  course,  for  the  enactment  of  laws, 
but  the  task  of  originating  and  framing  the  measures  which 
came  before  Congress  was  left  for  the  most  part  to  the  House 
of  Representatives.  The  Senate  looked  upon  itself  as  a  kind 
of  executive  council  whose  function  was  to  give  advice  to  the 
President,  and  for  a  numl^er  of  years  after  the  government  was 
established  gave  its  chief  attention  to  questions  of  treaties  and 
appointments  laid  Ijcforc  it  by  the  President.  As  already 
pointed  out,  the  theory  of  the  constitution  makers  was  that 
the  Senate  should  be  a  body  of  dignity,  conservatism,  and  im- 
partiality which  would  keej)  itself  free  from  jKirtisan  strife. 
This  point  of  view  was  (juite  generally  accepted  and  as  a  conse- 
quence the  Senate  sat  in  secluded  dignity  behind  closed  doors, 
deliberating  u|)on  the  executive  business  that  was  submitted 
to  it  by  the  President.  It  was  not  for  some  years  that  the 
Senate  seemed  to  awaken  to  its  opportunity  in  connection  with 


THE   SENATE  1 39 

legislation  and  began  to  make  use  of  its  constitutional  powers. 
Very  rapidly,  after  the  start  was  once  made,  the  Senate  asserted 
its  rights  under  the  Constitution  and  at  all  times  since  has 
shown  a  very  jealous  concern  for  what  is  called  its  "  preroga- 
tives." Frequent  controversies  have  arisen  between  the  two 
houses  of  Congress  over  their  respective  rights  and  between 
the  Senate  and  the  President.  In  the  main,  it  is  generally 
conceded,  the  results  of  these  controversies  have  strengthened 
the  Senate.  Always  ready  to  resent  any  invasion  of  its  own 
rights,  real  or  apparent,  the  Senate  has  not  always  been  very 
scrupulous  about  observing  the  rights  of  the  House  of  Repre- 
sentatives and  of  the  President.  Much  has  been  said  in  the 
Senate  about  "executive  usurpation"  of  powers  that  belong  to 
the  Senate  alone  or  to  Congress  as  a  whole.  Of  "usurpation" 
on  the  part  of  the  Senate,  not  so  much  has  been  heard;  yet 
clearly  the  Senate  has  asserted  powers  in  connection  with 
revenue  legislation  and  acquired  a  dominance  in  connection 
with  appointments  to  office  by  the  President,  which  lie  outside 
its  province  as  measured  by  the  intentions  of  the  constitution 
makers.^  It  has  grown  in  influence  and  power,  both  as  a  legis- 
lative body  and  as  an  advisory  council  to  the  President. 

Executive  and  Judicial  Functions.  —  It  has  already  been 
made  clear  that  the  Senate  exercises  executive  as  well  as  legis- 
lative powers,  in  this  respect  differing  radically  from  the  House 
of  Representatives.  Its  executive  functions  are  two :  the  con- 
firmation of  appointments,  and  the  ratification  of  treaties. 
The  part  which  it  plays  in  these  two  very  important  matters 
has  previously  been  discussed  in  connection  with  the  powers  of 
the  President  and  does  not  again  need  detailed  treatment.  It 
should  be  kept  in  mind  that  the  Constitution  requires  the  con- 
firmation of  appointments  to  certain  offices  enumerated  in  the 
Constitution  itself,  and  the  ratification  of  all  treaties.  In  the 
case  of  other  offices,  created  by  act  of  Congress  and  to  be  filled 
by  appointment  of  the  President,  confirmation  may  be  required 
or  not  as  the  Congress  sees  fit  to  direct.  Usually  it  is  required. 
The  Senate  is  thus  a  powerful  check  upon  the  President  and  is 
in  a  position  to  influence  very  directly  the  work  of  the  executive 
branch  of  the  government.     In  fact,  through  its  "  Senatorial 

'  See  article  bj-  A.  Maurice  Low,  "The  Usurped  Powers  of  the  Senate,"  The 
American  Political  Science  Review,  Vol.  I,  p.  i. 


I40  COMPARATIVE  FREE   GOVERNMENT 

Courtesy  "  system,  already  described,  it  has  to  a  high  degree 
practically  supplanted  the  President  in  the  matter  of  appoint- 
ments ;  although  the  extent  to  which  this  is  true  depends  a 
good  deal  upon  the  character  of  the  man  who  is  President. 

With  respect  to  treaties,  although  its  consent  is  necessary 
for  their  validity,  the  Senate  has  not  been  so  successful  in  forc- 
ing the  President  to  do  its  will.  It  may  prevent  him  from 
carrying  out  his  own  policy,  but  it  cannot  compel  him  to  accept 
the  policy  which  the  Senate  itself  favors.  It  needs  no  argu- 
ment to  make  clear  that  these  executive  functions  give  to  the 
Senate  an  influence  in  the  government  which  the  House  of 
Representatives  does  not  have  and  cannot  have  under  the  Con- 
stitution. Moreover,  because  the  members  of  the  lower  house 
have  a  keen  personal  and  political  interest  in  the  appointment  of 
public  officers,  the  Senate  is  in  a  position  to  affect  seriously  at 
times  the  course  of  legislation  in  the  House  of  Representatives,  a 
fact  which  helps  to  explain  in  part  the  frequent  successes  of  the 
Senate  in  the  controversies  which  arise  between  the  two  houses. 

The  Senate  has  also  a  judicial  function  to  discharge.  It  is 
given  by  the  Constitution  the  "  sole  power  to  try  all  impeach- 
ments." In  exercising  this  power  the  Senate  sits  as  a  court, 
hears  the  evidence  submitted  and  passes  upon  its  admissibility, 
listens  to  the  arguments  for  and  against  the  accused,  and,  by 
formal  vote  upon  each  of  the  specific  charges  in  the  impeach- 
ment, determines  his  guilt  or  innocence.  The  members  of  the 
Senate  are  on  oath  or  affirmation.  The  Vice  President  presides 
except  when  the  President  of  the  United  States  is  on  trial, 
when  the  Chief  Justice  of  the  Supreme  Court  is  the  presiding 
oflficer.  The  vote  of  two  thirds  of  the  members  present  is 
necessary  for  conviction.  By  constitutional  provision,  judg- 
ment in  impeachment  cases  cannot  extend  further  than  to 
"  removal  from  office,  and  disqualification  to  hold  and  enjoy 
any  office  of  honour,  trust,  or  profit  under  the  United  States." 
This  provision,  however,  docs  not  exempt  the  convicted  officer 
from  indictment,  trial,  and  punishment  according  to  existing 
law.  The  grounds  for  impeachment  are  "  treason,  bribery,  or 
other  high  crimes  and  misdemeanors,"  —  a  statement  some- 
what vague  anfl  infiefmite.  The  Senate  has  nothing  to  do  with 
the  voting  of  imj)eachments ;  that  is  the  exclusive  function  of 
the  House  of  Representatives.     The  President,  Vice  President, 


THE  SENATE  14! 

and  all  civil  officers  of  the  United  States  are  subject  to  im- 
peachment. 

VaUd  criticisms  may  be  made  of  the  impeachment  process. 
It  is,  as  suggested  in  a  previous  chapter,  a  slow  and  ponderous 
procedure,  not  well  adapted  to  a  large  number  of  cases  of 
minor  importance ;  it  is  only  in  connection  with  the  gravest 
offenses  committed  by  the  highest  officials  that  its  use  seems  to 
be  justified.  Moreover,  some  of  the  constitutional  provisions 
relating  to  it  are  hardly  satisfactory.  The  expression  "  other 
high  crimes  and  misdemeanors  "  is  not  sufficiently  explicit  as  a 
definition  of  crimes.  It  leaves  the  way  open  for  personal  and 
party  prejudices  to  work  their  will.  Also  there  have  been 
serious  differences  of  opinion  as  to  the  meaning  of  the  term 
"  civil  officers  of  the  United  States."  Senators  and  Represent- 
atives, for  instance,  are  not  civil  officers,  as  was  decided  in 
1789,  in  the  first  impeachment  case  tried  by  the  Senate,  that  of 
Senator  William  Blount  of  Tennessee.  However  serious  might 
be  the  offense  of  a  member  of  Congress  during  his  term  of 
office,  the  only  penalty  that  can  be  imposed  is  expulsion  from 
the  house  to  which  he  belongs.  Furthermore,  there  is  a  differ- 
ence of  opinion  as  to  whether  a  person  may  be  impeached  after 
he  has  retired  from  office  for  acts  which  he  committed  while 
holding  his  official  position,  and  as  to  whether  the  accused  may 
escape  from  trial  and  punishment  by  resigning  from  office.^ 
In  spite  of  its  faults,  however,  the  existence  of  the  impeach- 
ment process  is  undoubtedly  a  powerful  restraining  influence 
upon  the  conduct  of  public  officers.^ 

General  Character  of  the  Senate.  —  Reference  has  been 
made  to  the  Senate's  efficiency  and  success  as  an  instrument  of 
government,  notwithstanding  its  obvious  shortcomings.  The 
reason  for  this  success  is  not  found  in  any  one  specific  phase  of 
the  Senate's  organization,  but  in  a  number  of  things  which 
make  clear  its  general  character. 

1  Woodburn,  "The  American  Rciiublic,"  pp.  231-239. 

2  Notwithstanding  the  large  numt)er  of  persons  who  have  held  civil  office  under 
the  United  States  since  the  government  was  established,  there  have  been  only  nine 
cases  of  impeachment.  Of  the  accused  there  was  one  President,  one  cabinet  ofhcer, 
one  Senator,  and  si.x  judges.  Only  three  of  the  nine  —  all  judges  —  were  convicted. 
For  an  excellent  brief  review  of  the  impeachment  process,  see  article  on  "The  Law 
of  Impeachment  in  the  United  States,"  by  Professor  David  Y.  Thomas,  Political 
Science  Review  for  May,  igoS,  pp.  378  5.  Consult  also,  The  Federalist,  Nos.  65 
and  66. 


142  COMPARATIVE   FREE   GOVERNMENT 

1.  The  Senate,  comparatively  speaking,  is  a  small  legislative 
body;  much  smaller  than  the  corresponding  houses  of  leading 
European  legislatures.  The  advantages  of  this  are  plain. 
The  small  size  of  the  Senate  makes  unity  of  purpose  and  col- 
lective action  more  easily  attainable ;  increases  the  dignity 
and  influence  of  the  individual  member ;  makes  it  possible  for 
each  Senator  to  keep  intimately  in  touch  with  all  of  the  Senate's 
work ;  fixes  more  definitely  the  responsibility  for  what  is  done ; 
permits  greater  freedom  in  procedure ;  and  assures  general  and 
thorough  debate  upon  pending  measures.  In  the  matter  of 
size  the  Senate  is  much  more  fortunate  than  is  the  House  of 
Representatives. 

2.  As  a  consequence  of  its  small  size  and  the  complete  free- 
dom of  debate  allowed  by  its  rules,  the  Senate  is  a  real  delibera- 
tive assembly ;  too  much  so,  in  the  view  of  a  great  many  people. 
In  this  respect  it  differs  vitally  from  the  House  of  Represent- 
atives where  deliberation  and  debate,  as  far  as  the  House  as  a 
whole  is  concerned,  are  farcical  rather  than  real.  The  value 
of  this  characteristic  of  the  Senate  is  beyond  question,  though 
there  are  abuses  in  connection  with  it  which  should  be  prevented. 
The  problems  of  free  government  are  not  to  be  solved  without 
full  and  adequate  discussion. 

3.  For  the  most  part  the  Senate  is  composed  of  men  who  are 
experienced  in  pul^lic  life.  Always  many  of  its  members  have 
had  previous  experience  in  the  House  of  Representatives, 
where  they  learned  the  ins  and  outs  of  congressional  procedure 
and  the  difficulties  in  the  way  of  legislative  action.  Many 
others  pass  from  the  governorships  of  States  where  they  have 
had  excellent  experience  in  both  the  formulation  and  the  ad- 
ministration of  public  policies.  Of  course  not  all  Senators 
have  had  these  ojiportunities  for  training  in  public  service,  but 
almost  always  the  men  who  go  to  the  Senate  have  been  leaders 
in  their  States,  either  in  politics,  professional  life,  or  in  business. 
The  result  is  an  average  of  ability  distinctly  higher  than  that 
in  the  House  of  Rc'[)rcsentatives. 

4.  The  term  of  office,  —  six  years,  —  unlike  the  two-year 
term  in  the  lower  house,  is  sufficiently  long  to  enable  the  new 
member  to  acquire  experience  and  develop  such  latent  powers 
of  statesmanship  as  he  may  possess.  It  takes  some  time  to 
"  gel  on  to  the  ropes  "  of  the  Senate's  procedure.     Moreover, 


THE  SENATE  143 

the  longer  term  tends  to  make  the  Senators  a  little  more  inde- 
pendent in  their  judgments  and  actions  than  are  the  Represent- 
atives. They  may,  if  they  choose,  ignore  with  greater  safety 
to  their  political  fortunes  the  demands  of  extreme  partisanship 
and  sudden  changes  in  pubUc  opinion.  The  all-absorbing,  if 
not  all-important,  problem  of  a  reelection  is  not  quite  so  central 
and  dominating  in  the  thought  of  a  Senator  as  in  that  of  a 
Representative. 

5.  The  Senate  is  what  may  be  called  a  continuous  or  per- 
manent body.  Its  members  are  not  all  chosen  at  the  same 
time,  as  is  the  case  with  the  House  of  Representatives.  One 
third  are  chosen  every  two  years,  thus  insuring  to  the  majority 
at  least  two  years  of  experience  with  the  business  of  the  Senate. 
This  makes  possible  a  continuity  of  purpose  and  policy,  —  a 
fact  of  real  importance.  In  addition.  Senators  are  frequently 
reelected  again  and  again,  so  that  there  is  always  an  accumu- 
lated experience  on  the  part  of  the  Senate,  taken  as  a  whole, 
which  adds  greatly  to  the  dignity  and  influence  which  belong 
to  it  by  reason  of  its  constitutional  position  and  powers.  As  a 
consequence  service  in  the  Senate  is  usually  attractive  to  men 
of  superior  abihties,  and  it  is  doubtless  true,  as  Bryce  suggests, 
that  "  the  position  of  a  senator,  who  can  count  on  reelection, 
is  the  most  desirable  in  the  political  world  of  America."  ^  The 
rules  of  procedure,  to  which  the  Senate  has  adhered  in  the  face 
of  sharp  criticism,  give  to  its  members  the  chance  to  "  make 
good,"  to  develop  their  talents  for  statesmanship,  and  to  leave 
the  imprint  of  their  characters  upon  the  national  Hfe.  The  un- 
restrained freedom  of  debate  which  prevails,  though  it  places  a 
powerful  weapon  in  the  hands  of  those  who  may  be  more  con- 
cerned with  private  than  with  public  interests,  tends  to  en- 
courage individual  initiative  and  to  strengthen  the  feeling  of 
individual  responsibility.  The  individual  looms  large,  a  fact 
of  great  significance  which  in  no  way  destroys  for  the  average 
person  the  attractiveness  of  service  in  the  Senate.  Indeed,  it 
accounts  for  much  of  the  Senate's  success. 

Judgments  differ  as  to  the  value  of  the  Senate,  as  is  the 
case  with  all  agencies  of  government.  Praise  and  blame  alike 
have  been  heaped  upon  it.  Perhaps  there  can  be  no  full  unan- 
imity   of    opinion    concerning    it,    for,    as    President    Wilson 

'Bryce,  "The  American  Commonwealth,"  New  and  Revised  Edition,  Vol.  I,  p.  121. 


144  COMPARATIVE   FREE   GOVERNMENT 

points  out,  it  is  exceedingly  difficult  to  form  a  just  estimate  of 
it.  "  No  body  has  been  more  discussed  ;  no  body  has  been  more 
misunderstood  and  traduced.  There  was  a  time  when  we  were 
lavish  in  spending  our  praises  upon  it.  We  joined  with  our 
foreign  critics  and  appreciators  in  speaking  of  the  Senate  as  one 
of  the  most  admirable,  as  it  is  certainly  one  of  the  most  original, 
of  our  political  institutions.  In  our  day  we  have  been  equally 
lavish  of  hostile  criticism.  We  have  suspected  it  of  every  malign 
purpose,  fixed  every  unhandsome  motive  upon  it,  and  at  times 
almost  cast  it  out  of  our  confidence  altogether. 

"  The  fact  is  that  it  is  possible  in  your  thought  to  make 
almost  anything  you  please  out  of  the  Senate.  It  is  a  body 
variously  compounded,  made  many-sided  by  containing  many 
elements,  and  a  critic  may  concentrate  his  attention  upon  one 
element  at  a  time  if  he  chooses,  make  the  most  of  what  is  good 
and  put  the  rest  out  of  sight,  or  make  more  than  the  most  of 
what  is  bad  and  ignore  everything  that  does  not  chime  with  his 
thesis  of  evil.  The  Senate  has,  in  fact,  many  contrasted  char- 
acteristics, shows  many  faces,  lends  itself  easily  to  no  confident 
generalization.  It  differs  very  radically  from  the  House  of 
Representatives.  The  House  is  an  organic  unit ;  it  has  been 
at  great  pains  to  make  itself  so,  and  to  become  a  working  body 
under  a  single  unifying  discipline ;  while  the  Senate  is  not  so 
much  an  organization  as  a  body  of  individuals,  retaining  with 
singularly  little  modification  the  character  it  was  originally  in- 
tended to  have."  ' 

With  respect  to  one  general  fact,  however,  there  will  be  few 
to  disagree,  namely,  that  the  Senate  has  played  a  conspicuous 
r61e  in  the  nation's  history,  that  it  is  a  vital  part  of  the  national 
government,  and  that  it  has  fully  held  its  own  in  competition 
with  the  House  of  Representatives  and  the  presidency. 

RKFKRKNCES 

Bryck.     The  American  Coiumomcciillli,  lulition  i<)io,  Vol.  I,  Chaps.  X,  XI, 

XII. 
Eoki).     7V/C  Rise  tttul  Grmctli  of  Amrriiiin  l'olili<s,  Clia]).  XXI. 
Reinscii.     American  l^cgislaturcs  and  Lcj^islativc  Mrllioiis,  Chap.  III. 
Rkins(  11.     Readings  on  Anirrican  Federal  Governmcul,  Cliajis.  V,  VI. 
WiLSO.M.     Constiliilinnal  Government  in  the  United  Slates,  Clia]).  V. 
WoounuRN.     The  American  Republic,  Chap.  IV. 
YouNO.     The  New  American  Government  and  Us  Work,  Chap.  IV. 

'Wilson,  "Constitutional  (Jovcrnment  in  the  United  States,"  p.  112. 


CHAPTER  XII 

The  House  of  Representatives  —  Composition  and 
Organization 

TiiE  House  of  Representatives  is  very  different  from  the  Sen- 
ate, both  with  respect  to  what  it  was  intended  to  be  and  what 
it  actually  is.  It  differs  in  manner  of  selection,  in  organization, 
in  purpose,  and  in  procedure.  Some  of  the  most  interesting 
phases  of  government  in  the  United  States  are  revealed  by  the 
contrasts  between  the  two  houses  of  Congress. 

The  House  was  designed  by  the  Constitution  makers  to  be 
the  popular  branch  of  the  national  legislature.  It  was  to  stand 
for  the  people's  share  in  the  new  government.  The  men 
chosen  to  the  lower  house  were  to  be  representatives,  however, 
not  delegates.  They  were  to  owe  their  positions  to  the  peoj)le, 
or  rather  to  the  voters  of  their  respective  States,  but  they  were 
not  to  be  under  popular  control.  The  Senate  was  to  represent 
the  States  as  poHtical  organizations  and  its  members  were  to 
be  chosen  by  the  State  legislatures.  The  House  was  to  repre- 
sent the  people  of  the  States  directly,  its  members  being  chosen 
by  popular  election.  Receiving  their  commissions  of  authority 
in  this  way,  the  Representatives  could,  if  they  wished,  give  full 
expression  to  the  will  of  their  constituents,  and,  subject  to  the 
check  of  an  indirectly  elected  Senate  and  an  indirectly  elected 
President,  could  seek  to  make  that  will  effective  in  the  enact- 
ment of  laws  and  the  determination  of  national  policies.  It 
was  taken  for  granted  that  radicalism  and  excessive  democracy 
would  characterize  the  work  of  the  House,  as,  in  all  likelihood, 
would  hasty  and  ill-advised  action,  but  in  the  Senate  and  the 
presidency  adequate  safeguards  were  provided.  Democracy 
might  run  rampant  in  the  House  without  danger  to  the  Republic. 
It  was  expected  that  the  House  would  indulge  in  long,  passionate, 
turbulent  discussions  in  which  the  whims,  prejudices,  and  follies 
of  the  masses  would  find  free  expression.  It  would  be  the 
L  145 


146  COMPARATIVE  FREE  GOVERNMENT 

center  of  continuous  partisan  strife.  But  no  serious  harm  could 
ensue  because  a  conservative  Senate  and  a  disinterested  Presi- 
dent would  always  be  on  guard.  It  was  never  supposed  in 
the  beginning  that  the  membership  of  the  House  could  be 
brought  under  a  rigid  party  discipline,  such  as  has  prevailed 
for  so  long,  and  made  subject  to  a  system  of  rules  which  reduces 
debate  almost  to  the  vanishing  point  and  makes  a  free  general 
expression  of  opinion  practically  impossible.  A  House  chained 
by  rules  of  procedure,  at  its  own  volition,  and  in  subjection  to 
leaders  of  its  own  selection,  was  not  anticipated.  As  it  is  to-day, 
the  House  of  Representatives  is  quite  essentially  different  from 
what  it  was  expected  to  be.  The  transformation  that  has 
taken  place  will  be  indicated  in  the  discussion  that  follows. 

Basis  of  Representation.  —  Since  the  House  was  to  repre- 
sent the  people  directly,  it  was  natural,  in  order  to  have  the 
people  of  the  various  States  on  the  same  footing,  that  popula- 
tion should  be  made  the  basis  of  representation.  Also,  the 
acceptance  of  this  plan  was  made  necessary  by  the  compromise 
reached  by  the  large  and  small  States  with  respect  to  the  com- 
position of  the  two  houses.  The  former  would  not  consent  to 
equal  representation  of  the  States  in  the  Senate  unless  popu- 
lation was  made  the  basis  of  representation  in  the  House ;  and 
the  small  States  would  not  consent  to  the  latter  arrangement, 
unless  the  former  were  provided  for.  The  number  of  Repre- 
sentatives which  each  of  the  original  States  was  to  have,  at 
first,  was  fixed  in  the  Constitution,  the  total  membership  of  the 
first  House  being  sixty-five.  The  authority  to  determine  the 
population  unit  uf)on  which  Representatives  should  be  appor- 
tioned among  the  Stales  was  loflgcd  in  Congress.  This  means 
that  the  number  of  members  of  the  lower  house  is  fixed  by 
Congress.  Two  limitations  upon  this  power  are  imposed. 
First,  that  each  State  shall  have  at  least  one  Representative, 
and,  second,  that  the  total  number  of  Representatives  shall  not 
exceed  one  for  every  thirty  thousand  of  jxipulation.  A  census 
must  be  taken  every  ten  years  for  the  purpose  of  apportioning 
Representatives  in  accord  with  changes  in  po|)uIali()n.  If  the 
unit  of  rejjresentation  remains  the  same  —  and  Congress  may 
do  as  it  pleases  about  that  —  tlic  niinil)cr  of  menil)ers  must  in- 
crease as  the  population  grows  larger.  If  the  membership  is  to 
remain  the  same  or  be  reduced,  of  course  the  unit  of  representa- 
tion must  be  increased  accordingly. 


THE   HOUSE   OF   REPRESENTATIVES  —  ORGANIZATION      147 

The  great  growth  in  population,  from  5,000,000,  in  round 
numbers,  in  1800,  to  92,000,000  in  1910,  has  naturally  resulted 
in  a  marked  increase  in  the  House  membership,  notwithstanding 
the  fact  that  the  unit  of  representation  is  more  than  six  times 
as  large  as  the  minimum  set  in  the  Constitution.  At  the  present 
time,  based  on  the  1910  census  and  with  a  population  of  about 
200,000  for  each  congressional  district,  the  number  is  435. 
With  the  exception  of  the  reapportionment  of  1842,  the  member- 
ship has  been  increased  as  the  result  of  each  decennial  census. 

This  is  a  large  membership  for  any  legislative  assembly ; 
too  large,  in  fact,  for  the  highest  efficiency.  The  size  of  a 
legislature  always  materially  affects  its  organization  and  meth- 
ods. The  rules  of  procedure  are  necessarily  numerous  and 
complicated  in  a  body  of  such  size.  General  debate  is  practi- 
cally impossible.  Some  satisfactory  system  of  obtaining  effi- 
cient and  responsible  leadership  is  imperative,  as  the  history 
of  the  House  of  Representatives  so  clearly  shows.  The  vast 
power  which  the  Speaker  of  the  House  came  to  have  and  the 
rigid  requirements  of  its  committee  system  are  due  in  no  small 
degree  to  its  cumbersome  size.  One  of  the  significant  con- 
trasts between  the  Senate  and  the  House  lies  in  the  size  of  the 
two  bodies.  Whether  the  House  will  become  larger  in  the 
future  is  doubtful.  There  is  a  fair  probability  that  Congress 
will  decline  to  add  new  members  at  the  next  apportionment, 
regardless  of  population  growth.  At  the  apportionment  fol- 
lowing the  census  of  19 10,  there  was  strong  and  general  objec- 
tion to  further  increase. 

The  qualifications  of  a  Representative,  as  prescribed  by  the 
Constitution,  relate  to  age,  citizenship,  and  inhabitancy  of  the 
State  represented.  No  person  can  serve  as  Representative 
who  has  not  attained  the  age  of  twenty-five  years,  and  been 
for  seven  years  a  citizen  of  the  United  States,  and  who  is  not 
at  the  time  of  his  election  an  inhabitant  of  the  State  in  which 
he  is  chosen.  Whether  or  not  these  requirements  have  been 
satisfactorily  met  rests  with  the  House  to  say.  Question  has 
sometimes  arisen  as  to  both  citizenship  and  inhabitancy,  partic- 
ularly the  latter,  and  a  number  of  rulings  have  been  made. 
The  right  of  the  House  to  add  to  the  constitutional  qualifi- 
cations has  been  the  subject  of  a  great  deal  of  discussion  and 
the  question  must  be  looked  upon  as  undecided,  although  in 


148  COMPARATIVE   FREE   GOVERNINIENT 

one  instance,  as  pointed  out  in  a  previous  chapter,  the  House 
excluded  a  member-elect  chiefly  for  reasons  not  provided  for 
in  the  Constitution.^  The  States,  however,  clearly  have  no 
power  to  impose  additional  requirements.  With  respect  to 
the  election  of  Representatives,  the  Constitution  prescribes 
that  the  voters  participating  in  each  State  "  shall  have  the 
qualifications  requisite  for  electors  of  the  most  numerous  branch 
of  the  state  legislature,"  —  the  suffrage  qualifications  being 
left  to  the  State  to  determine. 

The  Congressional  Districts.  —  Members  of  the  House  of 
Representatives  are  chosen  from  districts,  known  as  congres- 
sional districts,  into  which  the  various  States  are  divided, 
except  in  the  case  of  States  that  are  entitled  to  only  one  Repre- 
sentative. In  such  instances,  of  course,  the  State  itself  is 
the  congressional  district  and  the  Representative  is  elected  from 
the  State  at  large.  The  district  plan  is  not  based  upon  any 
constitutional  provision,  but  was  first  required  by  act  of  Con- 
gress, passed  in  1842.  The  Constitution  simply  says  that 
Representatives  shall  be  chosen  "  by  the  people  of  the  several 
states."  For  more  than  half  a  century  the  States  were  per- 
mitted by  Congress  to  use  their  own  discretion  with  respect  to 
methods  of  electing  Representatives.  Election  upon  a  general 
ticket  was  common.  In  the  apportionment  act  of  1842,  how- 
ever, Congress  provided  that  "  in  every  case  where  a  State  is 
entitled  to  more  than  one  Representative,  the  number  to  which 
each  State  shall  be  entitled  under  this  apportionment  shall  be 
elected  by  districts  composed  of  contiguous  territory,  equal  in 
number  to  the  number  of  Representatives  to  wiiich  said  State 
may  be  entitled,  no  one  district  electing  more  than  one  Repre- 
sentative." In  later  acts  the  requirement  concerning  the  terri- 
tory of  the  district  has  been  made  somewhat  more  stringent. 
The  regular  rule  is  that  the  districts  shall  be  composed  of  "  con- 
tiguous and  compact  territory  containing  as  nearly  as  practi- 
cable an  equal  number  of  inhabitants."  Under  certain  condi- 
tions Congress  permits  the  election  of  members  at  large.  In 
case  a  new  apportionment  gives  to  any  State  an  increase  in 
the  number  of  Representatives,  the  additional  members  thus 
authorized  are  elected  at  large  until  the  Slate  is  redistricted  so 
that   the   number  of  districts  corresponds   to   the   number  of 

'  llinils,  "  I'rcccdents,"  Vol.  I,  p.  .177. 


THE  HOUSE  OF   REPRESENTATIVES  —  ORGANIZATION      149 

Representatives  to  which  the  State  is  entitled.  If  the  repre- 
sentation of  a  State  is  reduced  as  a  result  of  a  new  apportion- 
ment, and  at  the  time  of  the  election  the  number  of  districts 
has  not  been  reduced  accordingly,  all  of  that  State's  Repre- 
sentatives are  elected  at  large  and  will  continue  to  be  so  chosen 
until  the  State  is  redistricted  in  harmony  with  the  requirements 
of  the  law. 

The  division  of  the  States  into  congressional  districts  is 
in  the  hands  of  the  State  legislatures.  Except  for  the  restric- 
tion that  the  districts  shall  be  composed  of  contiguous  and 
compact  territory,  —  a  restriction  which  proves  very  elastic 
in  practice,  —  the  legislatures  are  free  to  arrange  the  districts 
pretty  much  as  they  please.  County  boundaries,  and,  in  the 
cities  entitled  to  more  than  one  Representative,  ward  bound- 
aries, are  usually  observed  in  the  formation  of  districts.  The 
purpose  of  Congress  in  adopting  the  district  system  was  to 
have  the  districts  fairly  equal  with  respect  to  population.  Great 
inequality  exists,  however,  some  districts  having  from  two  to 
three  times  the  population  of  others.  With  respect  to  the 
number  of  votes  cast  at  congressional  elections,  the  variation 
is  even  greater.^  It  should  be  remembered,  however,  that 
representation  is  based  on  population  and  not  on  the  number 
of  voters  or  the  number  of  votes  cast  at  election. 

Some  inequality  among  the  districts  is  unavoidable,  but 
much  of  that  which  exists  and  gives  rise  to  justifiable  criticism 
is  clearly  by  design.  The  dominant  parties  in  the  legislatures 
have  in  many  instances  purposely  arranged  the  districts  so 
that  they  would  have  a  marked  advantage  over  their  oppo- 
nents, regardless  alike  of  an  equitable  distribution  of  popula- 
tion and  the  geographical  formation  of  the  districts.  By  a 
careful  grouping  of  the  counties  of  a  State,  for  illustration,  the 
strength  of  the  minority  party  may  be  so  concentrated  in  a 
small  number  of  districts  that  the  majority  of  the  districts  will 
be  safely  controlled  by  the  party  in  power.  Or,  counties  which 
are  strongly  of  the  minority  faith  and  so  situated  that  they 
naturally  constitute  a  district  of  "  contiguous  and  compact 
territory,"  may  be  separated  in  forming  the  districts  and  joined 
with  counties  controlled  by  the  majority  party  so  that  the  latter 
will  easily  maintain  its  supremacy.     This  practice  of  arranging 

1  Beard,"  American  Government  and  Politics,"  New  and  Revised  Edition,  p.  235. 


150  COMPARATIVE   FREE   GOVERNMENT 

districts  for  the  sake  of  party  advantage  is  known  as  gerry- 
mandering, a  political  term  which  came  into  early  use.^  As  a 
result  of  it  many  curiously  shaped  districts  have  been  formed, 
as  is  indicated  by  the  names  by  which  they  are  popularly  char- 
acterized, —  "  shoestring,"  "  monkey  wrench,"  *'  belt  line," 
and  "  saddle  bag "  being  among  the  most  suggestive.  The 
latter  term  was  applied  to  an  Illinois  district  comprised  of  "  two 
groups  of  counties  at  different  sides  of  the  state,  so  connected 
as  to  crowd  as  many  Democratic  counties  as  possible  into  one 
district  and  thus  secure  Republican  seats  in  near-by  districts 
by  eliminating  the  vote  of  hostile  locaUties."  ^ 

A  striking  example  of  the  advantage  which  is  sometimes 
obtained  by  the  dominant  party  through  "  scientific  gerry- 
mandering "  is  found  in  the  arrangement  of  districts  made  by 
the  Democrats  in  Indiana  by  which,  in  1892,  they  succeeded 
in  electing  eleven  Representatives  with  a  vote  of  259,190,  while 
the  Republicans  with  a  vote  of  253,668  were  able  to  elect  only 
two.'*  It  should  be  noted,  however,  that  the  advantage  gained 
by  the  party  making  the  gerrymander  is  often  short-lived.  Not 
infrequently,  through  a  sudden  change  in  public  opinion,  the 
arrangement  so  carefully  made  proves  the  undoing  of  the 
party  responsible  for  it  and  gives  ascendancy  to  the  party  against 
which  it  was  directed.  The  gerrymander  is  a  weapon  which 
the  parties  have  been  willing  to  use,  but  sometimes  it  has  proven 
itself  to  be  of  the  boomerang  type. 

The  Residence  Rule.  ^  In  connection  with  the  discussion  of 
district  representation,  the  question  of  residence  within  the 
district  should  be  noted.  Either  by  custom  or  by  the  laws  of 
the  States  such  residence  is  almost  an  absolute  requirement. 
It  is  practically  not  [K)ssible  as  it  is  in  England  for  any  man, 
however  exiK-ricnced  and  iniluential,  to  ol^tain  an  election  in  a 

'"So  callc'l  from  lilhridKc  (icrry,  a  leading  Dcitkx  r;itic  politician  in  Massaciiu- 
sctts  (a  member  of  the  Constitutional  Conventions  of  17S7,  and  in  1812  elected  Vice- 
President  of  the  Unitefl  States),  who  when  Massachusetts  was  beiuR  rc-districted 
contrived  a  scheme  which  pave  one  of  the  districts  a  shape  like  that  of  a  lizard. 
Stuart,  the  well  known  artist,  entering  the  room  of  an  editor  who  had  a  map  of  the 
new  fjistricts  han^inK  on  the  wall  over  his  desk  observed,  'Why,  this  district  looks 
like  a  salamander,'  and  put  in  the  daws  and  eyes  of  the  creature  with  his  pencil. 
'Say  rather  a  Cerrymander,'  replied  the  editor;    and  the  name  stuck." 

Bryce,  "  'J'he  .\merican  ("ommonwealtli,"  New  and  Revised  Kdition,  Vol.  I,  p.  126. 

'  Reinsch,  "Ameriian  I^eKislaltires  and  I.eKislalive  Methods,"  p.  202. 

*  Commons,  "  rroiwrlional  Representation,"  Second  H<lilion,  p.  (n. 


THE  HOUSE  OF   REPRESENTATIVES  —  ORGANIZATION     1 51 

district  in  which  he  does  not  reside.  This  is  in  accord  with  the 
general  practice  in  the  United  States  where  by  law  the  residence 
rule  is  almost  always  required  with  respect  to  elective  oflfices  of 
all  kinds.  In  the  election  of  Representatives,  however,  it  is  not 
required  either  by  the  federal  Constitution  or  by  the  law  of 
Congress.  The  former  simply  says  that  Representatives  shall 
be  inhabitants  of  the  States  in  which  they  are  elected,  and  the 
latter,  in  substance,  that  they  shall  be  regularly  elected  by 
districts  instead  of  by  the  State  at  large  upon  a  general  ticket. 
As  suggested,  the  observance  of  the  rule  is  due  either  to  the 
force  of  a  long-standing  tradition  or  to  the  authority  of  State 
law.  Only  rarely  is  the  rule  not  observed.  In  the  city  of 
New  York,  there  have  been  instances  of  representation  of  down- 
town districts  by  men  who  were  not  resident  within  them ;  but 
aside  from  these,  the  rule  has  almost  never  been  violated.  The 
constitutionality  of  the  practice,  however,  is  exceedingly  doubt- 
ful. In  fact,  it  is  freely  held  to  be  invaUd  inasmuch  as  it  adds 
to  the  quaUfications  for  membership  in  the  House  as  prescribed 
in  the  Constitution.  The  assumption  may  be  .safely  made, 
though,  that  it  is  in  no  immediate  danger  of  being  set  aside,  since 
it  is  so  generally  approved  by  the  people  and  is  so  fully  in  har- 
mony with  their  political  habits. 

The  Time  of  Meeting.  —  The  time  of  meeting  of  a  new  Con- 
gress, as  prescribed  by  the  Constitution,  is  open  to  criticism 
and  has  been  made  the  subject  of  frequent  discussion.  As 
already  stated,  the  election  of  Representatives  takes  place  every 
two  years,  and  by  act  of  Congress  occurs  on  the  first  Tuesday 
after  the  first  Monday  in  November  of  the  even-numbered 
years.  Their  term  of  office  begins  on  the  fourth  of  March 
following  their  election.  But  unless  called  into  special  session 
by  the  President  at  an  earlier  time,  or  a  different  date  for  the 
meeting  of  Congress  is  set  by  law.  Congress  will  not  assemble 
until  the  first  Monday  in  the  following  December,  —  about 
thirteen  months  after  the  congressional  election.  Of  course 
Congress  can  fix  a  different  time  for  the  first  regular  session 
to  begin,  and  has  often  been  urged  to  shorten  the  period  elaps- 
ing between  the  election  and  the  time  of  its  assembling,  but  there 
is  little  to  indicate  any  change  in  the  practice  within  the  near 
future,  although  the  advantages  of  such  a  change  are  obvious. 

There  are  at  least  two  unfortunate  results  which  come  from 


152  COMPARATIVE  FREE   GOVERNMENT 

this  long  delay  to  which  a  newly  elected  Congress  must  sub- 
mit before  it  normally  begins  its  work.  One  is  that  after  the 
new  Congress  has  been  chosen,  the  closing  or  short  session  of 
the  old  Congress  is  still  to  be  held,  beginning  on  the  first  Mon- 
day in  December  immediately  following  the  congressional 
election  and  continuing  until  the  fourth  of  March.  Many 
members  of  this  old  Congress  may  have  been  defeated  for  re- 
election and  the  work  of  Congress  discredited  in  the  eyes  of 
the  people.  Yet,  however  strong  may  have  been  the  protest 
registered  by  the  voters  at  the  polls,  the  existing  Congress  still 
has  three  months  to  serve  and  may  proceed  in  its  own  way  to 
carry  out  its  own  will.  The  very  policies  condemned  by  the 
voters  may  be  enacted  into  law  during  this  time.  It  may  easily 
happen  in  a  presidential  year  that  the  party  in  power,  controlling 
the  presidency  and  both  houses  of  Congress,  will  be  routed"  at 
the  election,  and  a  President  and  Congress  of  the  opposite  party 
chosen.  Nevertheless,  the  President  and  Congress  thus  dis- 
credited have  a  free  hand  with  respect  to  legislation  until  their 
terms  of  office  expire.  During  this  time  many  things  may  be 
done,  or  left  undone,  contrary  to  the  wishes  of  the  people,  for 
the  purpose  of  embarrassing  the  incoming  administration. 
Enormous  appropriations  of  money  are  sometimes  carried 
through  by  men  who  within  a  few  weeks  or  a  few  days  will  pass 
from  power.  There  is  almost  certain  to  be  extravagance  and 
carelessness,  if  nothing  worse,  under  such  conditions.  It  can 
hardly  be  expected  that  the  same  degree  of  responsibility  will 
be  felt  by  men  who  have  been  rejected  by  the  voters  and  are 
giving  up  their  official  positions  as  will  characterize  the  attitude 
of  men  who  are  just  entering  upon  their  duties. 

The  second  result  to  be  noted  is  that  in  less  than  a  year  after 
a  new  Congress  begins  its  work,  the  next  one  must  be  elected. 
That  means  that  memlicrs  of  the  House  of  Representatives, 
at  the  very  beginning  of  their  terms,  must  give  thought  to  the 
problem  of  reelection  if  they  wish  to  continue  their  congres- 
sional service.  Indeed,  Ijcforc  the  end  of  thr  first  session, 
barely  more  than  six  months  after  taking  their  seats,  many 
Representatives  must  make  the  fight  for  renomination  at  the 
party  primaries.  This  is  a  very  distracting  j)roceeding  and 
diverts  their  attention  from  legislative  duties,  and  tempts  them 
to  courses  of  conduct  that  are  not  consistent  willi  (Hsinlerested 


THE  HOUSE  OF   REPRESENTATIVES  —  ORGANIZATION      1 53 

public  service.  In  such  circumstances  "  playing  politics  "  is 
inevitable.  The  man  who  wishes  to  make  a  career  for  himself 
in  the  lower  house  is  under  the  necessity  of  constantly  giving 
heed  to  the  political  conditions  and  movements  in  the  district 
he  represents.  If  he  does  not  do  so,  his  power  at  home  is  likely 
to  be  undermined,  either  by  party  opponents  or  by  rivals  within 
his  own  party,  and  he  be  retired  to  the  gloom  of  private  life.  A 
high  degree  of  efficiency  in  legislation  is  not  possible  under 
such  conditions.  The  necessity  of  "  playing  poHtics  "  during 
the  session  of  Congress  would  be  lessened,  although  it  would  not 
be  removed,  by  having  a  new  Congress  assemble  soon  after  its 
election. 

This  evil  —  for  it  is  truly  an  evil  —  is  intensified  by  the  short 
term  of  office  for  Representatives.  If  this  were  longer,  say 
four  years,  instead  of  two  as  prescribed  by  the  Constitution, 
members  of  the  House  could  devote  some  of  their  time  exclu- 
sively to  legislative  work  without  incurring  so  much  risk  of 
defeat  and  political  oblivion.  Less  attention  to  personal 
advancement,  on  the  part  of  Representatives,  and  more  to 
serious  consideration  of  the  problems  of  government  are  greatly 
needed  in  the  House.  The  opportunity  for  this,  at  least,  would 
be  afforded  by  a  longer  term.  Real  statesmanship  can  hardly 
be  expected  of  the  man  whose  thought  is  chiefly  occupied  with 
the  question  of  reelection.  Moreover,  the  short  term  practi- 
cally insures  the  presence  of  a  large  number  of  Representatives 
who  are  lacking  in  the  experience  necessary  for  efficient  legis- 
lative service.  Many  fail  of  reelection  and  are  retired  to 
private  life  after  only  a  term  or  two,  and  this  is  not  sufficient 
to  enable  the  average  member  to  become  thoroughly  familiar 
with  the  work  of  the  House  and  acquire  real  influence  in  its 
deliberations.  Just  when  many  Representatives  have  com- 
pleted their  apprenticeship,  so  to  speak,  and  have  become 
equipped  by  experience  for  the  difficult  work  of  legislation, 
they  are  driven  from  office,  and  untried  men  take  their  places. 
As  a  consequence,  there  is  a  great  loss  to  the  nation.  Those 
who  become  the  real  leaders  of  the  House,  almost  without 
exception,  are  men  who  have  been  repeatedly  reelected.  The 
speakership  and  the  important  committee  assignments  are 
almost  certain  to  go  to  men  of  long  experience.  The  seniority 
rule,  it  is  true,  is  not  so  stringently  observed  in  the  House  as  in 


154  COMPARATIVE   FREE  GOVERNMENT 

the  Senate,  but  it  is  nevertheless  of  very  great  consequence. 
And  as  a  result  of  it,  in  part,  legislative  power  is  centered  in 
the  few,  while  the  great  majority  of  members,  possessing  equal 
constitutional  privileges  and  powers  with  the  leaders,  hold 
places  of  comparative  insignificance. 

The  House  Organization.  —  With  the  expiration  of  the  two- 
year  term,  as  previously  pointed  out,  the  entire  membership 
of  the  House  ceases,  and  the  House  organization  disappears. 
"  The  moment  after  the  expiration  of  a  Congress,  the  House 
has  no  Speaker,  no  committees,  no  rules,  no  sworn  membership, 
and  no  actual  existence  as  an  organized  body."  ^  Of  course 
when  the  new  Congress  assembles,  a  new  organization  must  be 
effected.  This  involves  the  taking  of  the  oath  by  the  members- 
elect,  the  choosing  of  the  Speaker,  and  the  other  House  officers, 
the  adoption  of  rules,  and  the  appointment  of  committees. 
In  accomplishing  this  a  regular  procedure  is  observed.  The 
members-elect  are  called  to  order  by  the  Clerk  of  the  preceding 
House  who,  until  the  Speaker  is  elected,  serves  as  the  presiding 
officer.  The  roll  is  called  of  those  whose  credentials  show  that 
they  have  been  properly  elected.  In  this  way  the  presence  of 
the  constitutional  quorum  is  ascertained  and  the  way  prepared 
for  the  election  of  a  Speaker.  The  roll  is  again  called  and  each 
member  in  turn  states  his  choice  for  Speaker.  When  the  report 
of  the  tellers,  appointed  by  the  Clerk  and  representing  the  dif- 
ferent political  parties,  shows  that  any  candidate  has  a  majority 
of  all  the  votes  cast,  he  is  declared  elected,  and  is  escorted  to 
the  chair  by  a  committee  of  members,  where  the  oath  of  office 
is  administered.  The  Speaker  then  takes  charge  of  the  pro- 
ceedings and  gives  the  oath  to  the  members-elect.  Following 
this  comes  the  election  of  the  Clerk,  Sergeant-at-Arms,  and  other 
House  officers,  and  the  afloplion  of  a  set  of  rules.  With  respect 
to  the  latter,  usually  the  rules  of  the  preceding  House  are  adopted, 
to  remain  in  force  until  otherwise  ordered.  Upon  the  comple- 
tion of  these  steps,  the  House  is  said  to  be  organized  and  ready 
to  flo  business.  However,  it  has  no  committees,  and  without 
committees  practically  no  legislative  work  can  be  accomplished. 

The  most  notable  of  the  House  officers  is  the  Speaker.  In 
fact,  he  is  one  of  the  most  notable  officers  in  the  entire  govern- 
ment, although  his  power  is  not  so  great  under  the  rules  now 
'  McCall,  "  Tlic  Business  of  Congress,"  p.  34. 


THE  HOUSE  OF   REPRESENTATIVES  —  ORGANIZATION      155 

in  force  as  it  formerly  was.  The  position  of  speaker  has 
constitutional  recognition  in  the  provision  which  declares  that 
"  the  House  of  Representatives  shall  choose  their  speaker  and 
other  ofificers."  No  other  reference  to  the  speakership  is  con- 
tained in  the  Constitution.  It  will  be  noted  that  nothing  is 
said  as  to  his  powers  and  duties.  The  determination  of  these 
is  left  to  the  House  through  its  own  rules.  His  power  and 
influence  are  very  great,  however,  arising  first  from  the  fact 
that  he  is  the  presiding  officer,  charged  with  the  enforcement 
of  the  House  rules,  and,  second,  from  the  fact  that  he  is  the  leader 
of  the  dominant  party  in  the  House.  He  is  always  chosen  as 
a  party  man  and  is  expected,  therefore,  not  only  to  discharge 
the  duties  of  a  parliamentary  presiding  officer,  but  also  to  guide 
his  party  in  the  legislative  and  parliamentary  controversies 
which  arise.  In  this  latter  respect  he  differs  very  radically 
from  the  Speaker  of  the  English  House  of  Commons,  who  is 
expected  to  be  entirely  free  from  all  partisan  bias  and  activity. 
His  parliamentary  duties  are  such  as  usually  pertain  to  the 
presiding  officer  of  legislative  bodies  and  are  clearly  set  forth  in 
the  rules.  He  is  a  member  of  the  House,  with  all  the  rights  of 
the  ordinary  member  in  addition  to  those  of  the  presiding  officer. 
He  may  vote  upon  all  questions  if  he  chooses,  although  by  the 
House  rule  he  is  not  required  to  vote  in  ordinary  legislative 
proceedings,  "  except  where  his  vote  would  be  decisive  or  where 
the  House  is  engaged  in  voting  by  ballot."  The  Speaker's  name 
is  not  on  the  roll  used  in  calling  the  yeas  and  nays  and  is  not 
called  except  upon  his  request.  Usually  he  does  not  vote  when 
not  required  to  do  so. 

Formerly,  that  is,  prior  to  the  Sixty-second  Congress,  the 
Speaker,  acting  for  his  party,  appointed  all  standing  committees. 
This  privilege  gave  him  commanding  power,  for  through  his 
control  over  the  personnel  of  the  committees,  he  was  in  a  posi- 
tion practically  to  control  the  actual  work  of  the  House.  Nat- 
urally he  would  not  appoint  men  to  important  committee 
positions  who  stood  for  legislative  policies  to  which  he  was 
opposed.  This,  coupled  with  his  parliamentary  power  to 
grant  or  withhold  recognition  to  those  seeking  opportunity  to 
address  the  House  and  his  dominance  in  the  small  committee 
on  rules,  as  it  then  existed,  made  the  Speaker  almost  a  dictator 
in  the  affairs  of  the  House.     In  point  of  actual  influence  he 


156  COMPARATIVE   FREE   GOVERNMENT 

became  second  only  to  the  President.  The  growth  of  the  Speak- 
er's power  is  one  of  the  most  interesting  and  most  significant 
developments  that  have  occurred  in  connection  with  the  United 
States  government.  It  has  not  been  due  either  to  constitu- 
tional provision  or  to  legal  requirement,  but,  fostered  by  the 
House  rules  and  by  long-standing  custom,  is  the  result  of  a  slow 
evolution  in  response  to  one  of  the  vital  needs  of  the  House,  — 
the  need  of  leadership  and  centralized  control. 

For  many  years  the  House,  under  the  decentralizing  intlu- 
ence  of  democratic  theories,  was  loosely  organized  and  without 
adequate  discipline ;  hence  it  was  frequently  subject  to  the 
demoraHzation  that  comes  from  obstructionist  and  dilatory 
practices,  to  the  sacrifice  of  power  and  efficient  action.  It 
became  clear  in  time  that  leadership  and  effective  organization 
must  be  provided.  This  was  done  through  the  extension  of 
the  Speaker's  power  and  the  development  of  the  committee 
system.  But,  as  frequently  happens  in  governmental  reforms, 
the  movement  went  too  far,  and  ultimately  there  developed 
an  autocratic  regime,  which  made  the  House  subject  to  the  will 
of  the  Speaker  and  a  few  of  his  chief  lieutenants  who  were  at 
the  head  of  the  leading  committees.  It  became  possible  for 
the  Speaker  practically  to  determine  what  the  House  should 
and  what  it  should  not  do.  The  hands  of  the  ordinary  member 
were  tied  and  he  could  get  nothing  through  the  House  that  did 
not  meet  with  approval  from  the  leaders.  Of  course,  this  situa- 
tion could  be  changed  whenever  the  majority  wished  to  change 
it,  for  the  Speaker's  power  was  not  personal.  He  occujMcd  the 
position  he  held  because  his  followers  preferred  that  he  should. 
He  was  "  the  instrument,  as  well  as  the  leader  of  the  majority 
in  controlling  the  processes  of  the  House."  ^ 

Though  opposition  to  such  centralized  power  was  always 
existent,  it  was  many  years,  because  of  personal  and  party 
considerations,  before  a  majority  of  the  members  could  be  in- 
duced to  take  a  stand  for  a  change  in  the  House  rules,  looking 
to  the  curtailment  of  the  Speaker's  j)owers.  This  was  accom- 
plished finally  in  iyio,aftera  spectacular  parliamentary  struggle, 
and  nominally,  at  least,  the  Speaker  was  deprived  of  certain 
privileges.  Two  changes  of  consequence  to  the  Speaker  \yere 
made.     His  power  of  ap[)()inling  all  standing  committees  was 

'  Wilson,  "  Constilutioniil  (iuvcrnmcnt  in  the  l-'nilcd  States,"  p.  95. 


THE  HOUSE  OF   REPRESENTATIVES  —  ORGANIZATION      1 57 

taken  from  him,  and  these  were  made  elective  by  the  House 
itself.  Also  the  very  important  committee  on  Rules  was  in- 
creased in  membership  from  five  to  eleven  and  the  Speaker  was 
debarred  from  membership  upon  it.  With  respect  to  the  first, 
the  appointment  of  committees,  the  change  made  is  perhaps 
not  so  significant  as  appears  at  first  thought,  for  the  party  cau- 
cuses have  always  had  a  leading  part  in  the  selection  of  commit- 
tees, and  continue  to  have  under  the  new  rule.  Professor  Beard 
says :  "  Since  the  beginning  of  the  party  system  in  the  United 
States,  the  selection  of  the  members  of  committees  has  been 
in  the  hands  of  the  caucus  of  each  party,  under  the  leadership 
and  perhaps  dominance  of  a  few  men  experienced  in  the  arts  of 
management.  To  borrow  a  term  from  economics,  we  may  say 
that  the  committee  assignments  in  the  House  and  in  the  Senate 
are  determined  by  a  '  higgHng  in  the  market '  and  that  the  vari- 
ous posts  fall  to  members  roughly  according  to  their  abihties, 
their  actual  power  as  leaders,  their  skill  in  management.  This 
'  higgling  '  begins  long  before  a  new  Congress  meets ;  most  of 
the  important  assignments  are  determined  probably  before 
the  party  caucuses  assemble,  and  the  caucuses  only  ratify  the 
work  of  the  pre-caucuses,  while  the  houses  ratify  the  work  of 
the  caucuses."  ^  So  the  Speaker's  position,  though  somewhat 
different  under  the  present  rule,  is  only  a  Httle  less  powerful 
than  under  the  older  order.  Inasmuch  as  he  is  the  leader  of 
the  dominant  party  of  the  House,  he  is  certain  to  have  a  good 
deal  to  say  about  committee  assignments  and  House  procedure, 
whatever  the  formal  requirements  may  be  as  set  up  by  the  rules. 
His  only  rival  in  influence  is  the  chairman  of  the  Ways  and 
Means  Committee,  who  is  the  floor  leader  of  the  majority  and 
consequently,  from  the  standpoint  of  party  success,  is  in  a  posi- 
tion of  the  greatest  responsibility.  It  is  possible  that  the  future 
may  see  the  Speaker  transformed  into  an  exclusively  impartial 
parliamentary  officer  and  the  burden  of  party  leadership  in  the 
lower  House  transferred  to  the  floor  leader.^ 

REFERENCES 
(For  References,  see  the  following  chapter.) 

1  Beard,  "Americasi  Government  and  Politics,"  New  and  Revised  Edition,  p.  277. 

'  The  other  chief  officers  of  the  Mouse  are  the  Clerk,  the  Sergeant-at-.\rms,  the 
Doorkeeper,  the  Postmaster,  and  the  Chaplain.  In  addition,  there  are  many  assist- 
ants to  these  officers,  committee  clerks,  secretaries,  messengers,  and  other  employees. 


CHAPTER  XIII 

The  House  of  Representatives  —  Committees  and 
Procedure 

Frequent  reference  has  been  made  to  the  House  committee 
system.  This  must  be  considered  still  further  and  somewhat 
in  detail,  for  no  proper  understanding  of  the  organization  and 
work  of  the  House  can  be  obtained  without  full  knowledge  of 
the  part  which  the  committees  play  in  congressional  legisla- 
tion. Though  they  have  no  constitutional  foundation,  without 
its  committees  the  House  would  be  utterly  helpless.  The 
volume  of  business  each  session  is  so  vast  that  the  House  as 
a  whole  could  do  nothing  with  it.  With  all  of  their  faults  the 
committees  are  necessary. 

The  rules  provide  for  a  large  number  of  standing  committees, 
almost  sixty,  in  fact.  All  proposed  legislation  must  be  re- 
ferred to  appropriate  committees  for  investigation  and  report 
before  being  acted  upon  by  the  House.  For  each  important 
subject  there  is  a  standing  committee.  The  reference  of  meas- 
ures and  the  jurisdiction  of  committees  are  governed  by  the 
rules.  To  illustrate,  all  legislation  relating  to  the  revenue  and 
the  bonded  debt  of  the  United  States  must  be  referred  to  the 
Committee  on  Ways  and  Means;  that  relating  to  judicial 
proceedings,  civil  and  criminal  law,  to  the  Committee  on  the 
Judiciary;  that  relating  to  banking  and  currency,  to  the  Com- 
mittee on  Banking  and  Currency;  and  so  on  through  the  list. 
Naturally  the  committees  vary  a  good  deal  in  importance,  some 
of  them  having  little  to  do,  and  that  little  of  slight  conseciuence. 
Likewise  the  size  of  the  committees  varies  a  good  deal,  the  most 
important  having  twenty-one  members.  Those  named  above 
and  some  dozen  others  have  this  numbc-r.  ihere  arc  a  good 
many  with  a  mcmbershi[)  of  from  tIiirU;en  to  sixteen.  The 
smallest  committee  has  only  two  members.  'I'he  committee 
of  highest  rank  is  that  on  Ways  and  Means,  places  on  which 


THE   HOUSE  OF   REPRESENTATIVES  —  PROCEDURE      159 

are  eagerly  sought  by  leading  members  of  the  House.  In  addi- 
tion to  this  and  the  committees  on  Judiciary,  and  Banking 
and  Currency,  previously  referred  to,  the  list  of  leading  com- 
mittees includes  those  on  Appropriations,  Interstate  and  Foreign 
Commerce,  Rivers  and  Harbors,  Merchant  Marine  and  Fish- 
eries, Agriculture,  Foreign  Affairs,  Military  Affairs,  Naval 
Affairs,  Post  Office  and  Post  Roads,  Education,  Labor,  Reform 
in  the  Civil  Service,  District  of  Columbia,  and  Rules. 

The  chairman  and  the  other  members  of  each  committee 
are  formally  elected  by  the  House,  the  real  selection,  however, 
being  made  by  the  party  leaders  and  the  party  caucuses.  The 
plan  followed  since  the  change  in  the  rules  in  19 10  is  for  the 
Committee  on  Ways  and  Means,  whose  members  are  selected 
by  the  party  caucuses,  to  act  as  a  committee  on  committees,  and 
recommend  to  the  House  the  committee  assignments.  The 
House  then  makes  the  selection  official  by  giving  formal  ap- 
proval. The  minority  party  is  represented  upon  all  committees, 
its  members  being  selected  by  the  party  caucus.  The  majority, 
therefore,  permits  the  minority  to  name  its  own  committee 
representatives,  but  sees  to  it  that  practically  all  committees, 
particularly  those  that  have  to  do  with  contentious  questions, 
are  under  its  own  control  by  a  safe  margin.  For  instance,  the 
Committee  on  Rules  has  seven  members  from  the  majority 
party  and  four  from  the  minority ;  that  on  Ways  and  Means 
has  fourteen  from  the  majority  and  seven  from  the  minority. 
Other  committees  are  divided  in  about  the  same  proportion. 

Power  of  the  Committees.  —  Though  the  committees  are 
the  creatures  of  the  House,  established  for  the  purpose  of  ena- 
bling it  to  do  its  work,  yet  their  position  in  the  House  organiza- 
tion is  so  central  that  they  exercise  at  times  tremendous  power 
of  themselves.  Practically  no  action  is  taken  upon  a  legisla- 
tive proposal  that  has  not  been  under  consideration  by  a  com- 
mittee. As  President  Wilson  says,  "  the  business  of  the  House 
is  what  the  committees  choose  to  make  it."  As  a  rule,  they  for- 
mulate the  measures  reported  to  the  House.'     It  is  true  that  a 

1  The  actual  work  of  drafting  a  committee  measure  is  usually  assigned  to  a  sub- 
committee. If  the  bill  is  partisan  in  character,  the  sub-committee  is  composed 
entirely  of  members  of  the  majority  party.  In  the  preparation  of  committee  re- 
ports, also,  the  sub-committee  is  used.  For  a  discussion  of  the  sub-committees  and 
their  work,  see  article  by  Burton  L.  French,  A  mcrican  Political  Science  Review, 
Vol.  IX,  p.  68. 


l6o  COMPARATIVE   FREE   GOVERNMENT 

bill  introduced  by  a  member  and  referred  to  a  committee  may 
be  accepted  by  the  latter  as  satisfactory  with  respect  to  both 
form  and  substance,  and  be  reported  to  the  House  practically 
without  change.  On  the  other  hand,  they  may  "  pull  it  about 
and  alter  it,  or  they  may  throw  it  aside  altogether  and  frame 
a  measure  of  their  own,  or  they  may  do  nothing,  make  no  report 
at  all.  Few  bills  ever  see  the  light  again  after  being  referred  to 
a  committee."  ^ 

This  power  of  the  committees  to  "  pigeonhole  "  proposed 
legislation,  and  thus  kill  it,  is  very  great,  although  their  juris- 
diction in  this  regard  is  not  quite  so  wide  as  it  formerly  was. 
By  a  rule  adopted  in  1910  it  is  possible  for  any  member,  under 
decidedly  rigid  restrictions,  however,  to  move  for  the  discharge 
of  a  committee  from  "  further  consideration  of  any  public  bill 
or  joint  resolution  vhich  may  have  been  referred  to  such  com- 
mittee fifteen  days  prior  thereto."  -  This  opens  the  way  for 
interference  on  the  part  of  the  House  when  committees  fail 
to  report  upon  matters  referred  to  them,  but  this  action  would 
hardly  be  taken  except  where  a  committee  was  dilatory  in  con- 
nection with  some  measure  that  was  of  general  interest  and  upon 
which  the  House  desired  action.  In  that  case  the  committee 
would  hardly  seek  to  defeat  the  House  in  its  purpose,  although 
that  is  not  unknown.  The  rule  may  afford  relief  at  times,  but 
it  will  not  prevent  the  continued  wholesale  slaughter  of  measures 
through  committee  inaction.  It  is  inevitable,  indeed,  that  this 
slaughter  shall  go  on  by  one  process  or  another,  because  other- 
wise the  House  would  be  swamped  by  the  veritable  deluge  of 
measures  at  each  session.  A  large  proportion  of  these  bills 
would  doubtless  be  killed  by  the  House  if  they  were  submitted 
for  its  action.  Killing  them  in  committee  is  a  more  expeditious 
method.  The  unfortunate  thing,  however,  is  that  now  and 
then  really  worthy  and  desirable  measures  are  dispatched  in  this 
way,  to  the  serious  loss  of  tlie  Nation. 

Committee  Meetings  and  Proceedings.  —  It  should  be  noted, 
also,  in  this  connection,  that  the  meetings  of  the  committees 
are  secret  unless  the  committees  wish  to  have  them  open  to  the 
public.  All  their  work  can  be  done  i)chind  closed  doors  if  they 
so  wish.     No  one  has  a  right  to  appear  before  a  committee 

'  Wilson,  "  Constitutional  Government  in  the  United  States,"  p.  oo. 
'House  Rule,  No.  XXVII,  paragraph  4. 


THE  HOUSE  OF  REPRESENTATIVES  —  PROCEDURE      l6i 

and  express  his  views  as  to  pending  legislation.  A  committee 
may  invite  particular  individuals,  or  extend  a  general  invitation 
to  all  interested  persons  to  appear  and  give  testimony  either 
for  or  against  the  proposed  measures;  but  if  this  is  done,  it  is 
because  the  committee  wishes  to  do  so  of  its  own  accord  or 
feels  that  it  must  in  deference  to  public  opinion.  The  public 
cannot  demand  admission. 

Moreover,  the  proceedings  of  committee  meetings  are  not 
ordinarily  officially  reported  and  published  as  are  those  of  the 
House  and  of  the  Senate.  Therefore,  no  publicity  is  given  to 
committee  work  except  as  the  newspapers,  in  response  to  public 
interest,  may  uncover  and  publish  what  was  done.  Even  then, 
however,  the  reports  are  very  meager  as  a  rule,  and  the  mass  of 
the  people  is  usually  in  profound  ignorance  of  what  transpires 
in  the  committee  rooms.  This  is  all  the  more  remarkable  when 
it  is  recalled  that  the  real  work  of  legislation  takes  place  in  the 
committees.  It  is  there  that  the  real  debating  of  measures 
occurs,  for  the  House  itself  does  not  debate ;  it  has  not  the  time. 
It  is  by  the  committees  that  the  information  is  gathered  which 
determines  the  character  of  the  legislation  that  is  enacted, 
and  it  is  by  the  committees  that  the  bills  are  either  drafted 
or  scrutinized  carefully  and  put  in  form  for  submission  to  the 
House.  In  most  instances  the  latter  does  little  more  than  give 
official  sanction  to  what  the  committees  recommend.  Yet, 
for  the  most  part,  the  committees  act  in  secret  and  their  mem- 
bers are  without  that  acute  sense  of  personal  responsibility 
attendant  upon  wide  and  full  publicity  of  official  acts.  That 
this  is  a  dangerous  practice  and  lends  itself  to  the  uses  of  the 
evil  forces  of  politics,  which  love  the  darkness  rather  than  the 
light,  cannot  be  questioned.  One  of  the  big  reforms  yet  to  be 
accomplished  is  in  connection  with  committee  procedure. 

One  practice,  however,  should  be  mentioned  here,  which 
is  frequently  observed  and  is  of  great  significance,  —  the  prac- 
tice of  holding  public  hearings  upon  pending  legislation.  This 
has  become  more  common  in  recent  years  and  may  be  taken 
as  presaging  the  time  when  what  is  a  mere  privilege  now  on 
the  part  of  the  public  may  become  a  right,  —  the  right  to  be 
heard  by  the  committees  of  Congress  upon  any  measure  that 
is  under  consideration.  In  fact,  the  public  hearing  may  mark 
a    most    important    development    in    free    government.     It    is 


1 62  COMPARATIVE   FREE   GOVERNMENT 

really  a  unique  practice  and  is  the  product  of  American  experi- 
ence, existing  in  no  other  country.  It  is  freely  used  by  both 
houses  of  Congress  and  by  the  legislatures  of  the  various  States. 
Its  influence  is  wholesome  and  its  use  should  be  extended. 
Speaking  of  public  hearings,  President  Lowell  says:  "They 
are,  indeed,  a  highly  valuable  element  in  popular  government ; 
and  this  is  the  more  true  because  with  the  elimination  of  thorough 
discussion  from  our  representative  bodies,  due  partly  to  the 
increase  of  legislative  business,  partly  to  the  cutting  down  of 
time,  and  partly  to  the  large  proportion  of  new  members,  most 
of  the  real  work  must  be  done  through  public  opinion  by  sample 
in  the  form  of  committees,  and  committees  without  public 
hearings  are  cut  off  from  their  best  source  of  light."  ^ 

Influence  of  Committee  System.  —  That  the  committees 
are  essential  to  the  House  and  have  a  vital  place  in  its  organi- 
zation, is  obvious  at  a  glance.  They  make  it  possible  for  the 
House  to  do  its  work.  Yet  their  results  are  not  all  beneficent. 
One  of  the  points  most  worthy  of  emphasis  is  the  degree  to 
which  the  unity  of  the  House  is  broken  up  by  the  committee 
system.  The  House  is  dependent  upon  its  committees.  Each 
of  the  committees  is  a  sort  of  miniature  legislature  in  itself. 
Each  has  its  own  work  to  do,  and  does  it  with  little  or  no  regard 
to  what  the  others  are  doing.  They  are  under  no  responsibility 
or  obligation  to  one  another,  and  go  on  with  their  work,  regard- 
less of  whether  the  results  harmonize  or  not.  This  unfortunate 
consequence  is  particularly  noticeable  in  connection  with  fman- 
cial  legislation.  Income,  in  the  form  of  revenue,  and  outgo, 
in  the  form  of  expenditures,  are  wholly  unrelated  as  far  as  the 
House  committees  are  concerned.  The  Committee  on  Ways 
and  Means  has  nothing  at  all  to  do  with  the  various  appropria- 
tion committees.  The  former  may  favor  a  policy  of  niggardly 
economy,  and  the  latter  one  of  wasteful  extravagance,  but  there 
is  no  way  of  bringing  them  as  committees  into  harmonious 
relations  in  support  of  a  common  policy.  And  not  only  is  there 
this  complete  separation  between  the  revenue-raising  and  the 
revenue-spending  rommiltees,  but  the  authority  to  prepare 
appropriation  bills  is  diffused  among  a  number  of  committees, 
each  independent  of  the  others  in  all  respects.  There  are, 
in  fact,  not  fewer  than  nine  committees  in  the  House  that  have 

'  Lowell,  "  Public  Opinion  and  Popular  Government,"  p.  256. 


THE  HOUSE  OF  REPRESENTATIVES  —  PROCEDURE   163 

to  do  with  the  framing  of  appropriation  measures.  Unity 
under  such  conditions,  of  course,  is  impossible.  It  not  infre- 
quently happens  that  measures  involving  fundamental  conflicts 
are  reported  to  the  House  by  different  committees,  and  some- 
times such  measures  become  laws.  The  efficiency  that  comes 
to  the  House  through  its  committee  system  is  acquired  at  high 
cost.  The  quality  of  its  work  is  not  always  such  as  to  be  a  source 
of  pride. 

Other  unfortunate  results  of  the  system  are  equally  clear, 
two  of  which  may  be  stated  in  the  well-known  words  of  Bryce. 
"  It  gives  facilities  for  the  exercise  of  underhand  and  even  cor- 
rupt influence.  In  a  small  committee  the  voice  of  each  mem- 
ber is  well  worth  securing,  and  may  be  secured  with  little  dan- 
ger of  a  pubHc  scandal.  The  press  cannot,  even  when  the  doors 
of  committee  rooms  stand  open,  report  the  proceedings  of  sixty 
bodies;  the  eye  of  the  nation  cannot  follow  and  mark  what 
goes  on  within  them ;  while  the  subsequent  proceedings  in  the 
House  are  too  hurried  to  permit  a  ripping  up  there  of  suspicious 
bargains  struck  in  the  purlieus  of  the  Capitol,  and  fulfilled  by 
votes  given  in  a  committee.  .  .  . 

"  It  reduces  responsibiUty.  In  England,  if  a  bad  act  is 
passed  or  a  good  bill  rejected,  the  blame  falls  primarily  upon 
the  ministry  in  power  whose  command  of  the  majority  would 
have  enabled  them  to  defeat  it,  next  upon  the  party  which 
supported  the  ministry,  then  upon  the  individual  members 
who  are  officially  recorded  to  have  '  backed  it '  and  voted  for  it  in 
the  House.  The  fact  that  a  select  committee  recommended  it 
—  and  comparatively  few  bills  pass  through  a  select  com- 
mittee —  would  not  be  held  to  excuse  the  default  of  the  minis- 
try and  the  majority.  But  in  the  United  States  the  ministry 
cannot  be  blamed,  for  the  cabinet  officers  do  not  sit  in  Congress ; 
the  House  cannot  be  blamed  because  it  has  only  followed  the 
decision  of  its  committee ;  the  committee  may  be  an  obscure 
body,  whose  members  are  too  insignificant  to  be  worth  blaming. 
The  chairman  is  possibly  a  man  of  note,  but  the  people  have  no 
leisure  to  watch  sixty  chairmen :  they  know  Congress  and 
Congress  only ;  they  cannot  follow  the  acts  of  those  to  whom 
Congress  chooses  to  delegate  its  functions.  No  discredit 
attaches  to  the  dominant  party,  because  they  could  not  con- 
trol the  acts  of  the  eleven  men  in  the  committee  room.     This 


1 64  COMPARATIVE   FREE   GOVERNMENT 

public  displeasure  rarely  finds  a  victim,  and  everybody  con- 
cerned is  relieved  from  the  wholesome  dread  of  damaging  him- 
self and  his  party  by  negligence,  perversity,  or  dishonesty. 
Only  when  a  scandal  has  arisen  so  serious  as  to  demand  inves- 
tigation is  the  responsibility  of  the  member  to  his  constituents 
and  to  the  country  brought  duly  home."  ^ 

The  House  Rules.  —  In  the  House,  as  in  the  Senate,  an 
elaborate  system  of  rules  has  been  found  necessary.  With  so 
large  a  membership  and  so  much  business  to  be  attended  to 
each  session,  the  House  would  be  in  a  state  of  hopeless  confusion 
if  every  step  in  its  procedure  were  not  under  strict  control. 
The  organization  of  the  House,  the  duties  of  its  officers,  the 
work  of  the  committees,  the  conduct  of  members,  the  pro- 
cedure on  bills  and  resolutions,  the  order  of  business,  and 
other  things  as  well,  are  all  provided  for  in  minute  detail.  The 
rules  of  procedure  include  the  principles  of  parliamentary  law 
found  in  Jefferson's  "  Manual  of  Parliamentary  Practice,"  based 
on  the  practice  of  the  English  House  of  Commons,  and  the 
standing  rules  of  the  House,  adopted  from  time  to  time  to  meet 
its  own  special  needs.  In  addition  there  is  the  large  number 
of  precedents  which  have  grown  up  since  Congress  first  assem- 
bled in  1789. 

The  rules  now  in  force  are  at  base  substantially  the  same  as 
those  adopted  in  the  early  years  of  Congress,  modified  and 
extended  as  occasion  demanded.  The  chief  objects  sought  by 
the  extension  of  the  rules  have  been  to  expedite  business,  to 
centralize  control  in  the  House  so  as  to  insure  orderly,  system- 
atic procedure,  and  to  prevent  the  minority,  through  fili- 
bustering and  other  obstructionist  practices,  from  defeating 
the  will  of  the  majority.  As  expressed  by  the  House,  the  pur- 
])oses  in  view  have  been :  "  Economy  of  time,  order,  and  the 
right  of  a  majority  to  control  and  dispose  of  the  business  for 
which  it  is  held  responsible."  Before  1890,  the  minority  would 
frequently  block  the  way  to  action  on  the  part  of  the  majority 
by  breaking  a  f|Uorum  through  refusal  to  vote,  !)y  demanding 
the  yeas  and  nays,  and  by  the  use  of  certain  privileged  motions 
such  as  "  to  take  a  recess,"  and  "  to  adjourn  to  a  day  certain," 
upon  the  amcnrlments  to  whicli,  as  well  as  to  the  original  motion, 
the  call  «jf  1  111   roll  could  be  demanded.     As  the  rules  then  stood, 

'  Brycc,  "  Ttie  American  ('ommonwcaltli,"  New  and  Revised  Edition,  pp.  162-163. 


THE  HOUSE  OF   REPRESENTATIVES —PROCEDURE      165 

these  motions  could  be  made  again  and  again,  without  limit, 
to  the  utter  confusion  of  the  House.  At  one  time  during  the 
Fiftieth  Congress,  the  House  was  in  continuous  session  for  eight 
days  and  nights.  More  than  a  hundred  useless  roll  calls  were 
taken  upon  privileged  motions  at  the  demand  of  the  minority 
for  the  sole  purpose  of  delay.  The  House  had  completely 
broken  down  as  a  legislative  body,  and,  to  its  complete  de- 
moralization, had  become  the  plaything  of  an  obstructionist 
minority.  Immediate  and  drastic  reform  was  needed.  This 
came  in  the  following  Congress,  under  the  leadership  of  one  of 
the  greatest  Speakers  the  House  has  ever  had,  the  brilliant 
Thomas  B.  Reed,  who,  in  the  face  of  tremendous  opposition, 
put  an  end  to  one  of  the  worst  abuses  by  counting  as  present 
for  the  purpose  of  a  quorum  all  members  who  were  in  the 
chamber,  whether  they  responded  to  the  roll  call  or  not.  In 
Mr.  Reed's  opinion  the  constitutional  quorum  was  not  a  voting 
quorum  and  "  physical  presence  and  constructive  absence  " 
were  impossible.  The  principle  he  acted  on  is  now  embodied 
in  the  House  rules  and  is  regularly  followed.  Another  reform 
of  equal  importance  was  made  during  the  same  session  when 
the  Speaker  was  given  power  to  refuse  to  entertain  motions 
which  he  looked  upon  as  dilatory.  The  exception  to  this,  of 
course,  is  the  call  for  the  yeas  and  nays,  which  members  have  a 
constitutional  right  to  make,  and  which  must  be  ordered  upon 
the  demand  of  one  fifth  of  the  members  present,  no  matter  what 
the  purpose  may  be.  The  rule  makes  it  possible,  however,  to 
prevent  a  great  deal  of  needless  delay,  and  has  accomplished 
much  in  the  way  of  expediting  business. 

One  of  the  rules  deserving  of  special  mention  is  that  which 
restricts  debate  in  the  House.  Under  a  provision  adopted  in 
1841,  "  no  member  shall  occupy  more  than  one  hour  in  debate 
on  any  question  in  the  House  or  in  Committee."  By  the  rules 
the  discussion  of  certain  motions  is  limited  to  a  specified  number 
of  minutes.  The  five-minute  rule  is  frequently  observed  when 
the  House  sits  as  a  Committee  of  the  Whole.  Under  si)ecial 
rules  brought  in  by  the  Committee  on  Rules  as  occasion  may 
demand,  the  time  to  be  devoted  to  the  discussion  of  particular 
bills  may  be  fixed,  and  a  definite  hour  set  for  taking  the  vote. 
No  matter  how  important  the  measure  may  be,  this  time  is 
always  short,  possibly  only  a  few  hours.     This  is  divided  be- 


1 66  COMPARATIVE   FREE   GOVERNMENT 

tween  the  leaders  on  each  side  of  the  question  and  by  them  is 
parceled  out  to  their  respective  followers.  The  demand  for 
chances  to  speak  is  always  very  great,  while  the  time  is  very 
short.  The  result  is  that  many  of  the  speeches  in  the  open 
House  upon  questions  of  the  highest  importance  are  only  of 
five  or  perhaps  ten  minutes'  length.  Thorough  debate  is 
hardly  possible  under  such  conditions. 

Because  of  the  very  limited  debate  that  occurs  the  House  has 
been  subjected  to  a  great  deal  of  criticism.  The  value  of  free 
debate  is  everywhere  recognized,  yet  it  is  hard  to  see  how  the 
House,  with  its  435  members,  could  possibly  do  its  work  with- 
out limiting  the  time  of  speakers.  If  debate  is  to  be  at  all 
general,  individual  members  must  be  restrained.  Moreover, 
unlimited  debate  is  not  without  its  faults  as  the  experience  of 
the  Senate  clearly  shows.  One  of  the  striking  contrasts  be- 
tween the  two  houses  —  and  one  which  is  by  no  means  wholly 
in  the  Senate's  favor  —  lies  at  this  point.  In  this  connection 
the  words  of  President  Wilson  are,  as  usual,  suggestive  and 
interesting : 

"  Perhaps  the  contrast  between  them  is  in  certain  respects 
even  sharper  and  clearer  now  than  in  the  earlier  days  of  our 
history,  when  the  House  was  smaller  and  its  functions  simpler. 
The  House  once  debated  ;  now  it  does  not  debate.  It  has  not 
the  time.  There  would  be  too  many  debaters  and  there  are  too 
many  subjects  of  debate.  It  is  a  business  body,  and  it  must 
get  its  business  done.  When  the  late  Mr.  Reed  once,  upon  a 
well-known  occasion,  thanked  God  that  the  House  was  not  a 
deliberate  assembly,  there  was  no  doubt  a  dash  of  half-cynical 
humor  in  the  remark,  such  as  so  often  gave  spice  and  ])iting 
force  to  what  he  said,  but  there  was  the  sober  earnest  of  a  serious 
man  of  affairs,  too.  He  knew  the  vast  mass  of  business  the 
House  undertook  to  transact:  that  it  had  made  itself  a  great 
organ  of  direction,  and  that  it  would  be  impossible  for  it  to 
get  through  its  calendars  if  it  were  to  attempt  to  discuss  in 
open  house,  instead  of  in  its  committee  rooms,  the  measures 
it  acted  upon.  The  Senate  has  retained  its  early  rules  of  pro- 
cedure without  material  alteration,  li  is  si  ill  a  place  of  free 
and  prolonged  debate.  It  will  not  curtail  the  i)rivilege  of  its 
members  to  say  what  they  please,  at  whatever  length.  Hut 
the  Senators  are  (•omi)aratively  few  in  number ;   they  can  alford 


THE  HOUSE  OF  REPRESENTATIVES  —  PROCEDURE   167 

the  indulgence.  The  House  cannot.  The  Senate  may  remain 
individuaUstic,  atomistic,  but  the  House  must  be  organic,  — 
an  efficient  instrument,  not  a  talkative  assembly."  ' 

Bill  Procedure.  —  The  procedure  upon  bills  and  resolutions 
is  practically  identical  with  that  in  the  Senate.  Bills  may  be 
introduced  by  any  member  without  restriction  by  depositing 
them  with  the  Clerk.  If  a  member  desires  legislation  upon  some 
subject,  but  prefers  not  to  draft  the  measure  himself,  he  may 
introduce  a  petition  for  a  bill  of  the  kind  in  mind,  which  will 
be  referred  to  the  proper  committee  for  drafting.  The  com- 
mittee, of  course,  is  under  no  obligation  to  prepare  such  a  bill ; 
no  more  so  than  it  is  to  report  to  the  House  bills  that  have  been 
referred  to  it.  Technicallly  the  committees  do  not  have  the 
right  to  initiate  measures,  but  this  is  of  httle  moment  because 
if  a  committee  desires  to  bring  in  a  bill  upon  a  question  which 
is  within  its  jurisdiction,  any  of  its  members  may  introduce  a 
measure  of  the  kind  contemplated  and  have  it  referred ;  then 
the  committee  can  proceed  to  prepare  its  own  draft  and  report 
it  to  the  House.  Also  the  House  may  instruct  aily  of  its  com- 
mittees, if  it  wishes,  to  prepare  and  report  bills  or  resolutions. 
Messages  from  the  President  and  communications  from  the 
executive  departments  when  referred  to  the  committees  give 
them  authority  to  originate  bills. 

Upon  introduction,  a  bill  is  immediately  referred  to  a  com- 
mittee, numbered,  and  printed.  As  already  noted,  the  com- 
mittee may  or  may  not  report  it  to  the  House.  If  it  is  reported, 
the  recommendation  of  the  committee  may  be  that  it  pass  as 
introduced,  or  that  it  be  amended  in  certain  ways,  or  that  it 
be  indefinitely  postponed.  If  the  latter  be  the  opinion  of  the 
committee,  however,  the  likelihood  is  that  the  measure  would 
not  be  reported  at  all,  unless  the  report  was  forced  under  pres- 
sure from  the  House.  Not  infrequently  measures  are  reported 
without  recommendation.  After  a  bill  is  reported  to  the 
House,  it  is  placed  on  the  particular  Calendar  where  it  belongs, 
from  which  it  will  be  taken  in  the  regular  order.  Occasionally 
a  privileged  bill  is  considered  by  the  House  when  it  is  reported 
by  the  committee,  but  not  often.  If  the  bill  is  a  revenue  or 
an  appropriation  bill,  it  is  considered  in  Committee  of  the 
Whole,  where  it  is  first  subjected  to  general  debate  and  then  to 

1  Wilson,  "Constitutional  Government  in  the  United  States,"  p.  88. 


1 68  COMPARATIVE  FREE  GOVERNMENT 

reading  for  amendment  under  the  five-minute  rule.  It  is 
finally  reported  to  the  House  for  formal  action.  If  it  does  not 
require  consideration  in  Committee  of  the  Whole,  it  is  read 
a  second  time,  upon  report  to  the  House  from  the  committee, 
and  is  open  to  debate  and  amendment.  Following  this  step 
in  the  procedure  it  is  up  for  engrossment  and  third  reading. 
The  question  is  on  ordering  engrossment  and  third  reading  at 
one  vote.  If  the  vote  is  in  the  affirmative,  the  third  reading, 
by  title,  usually  occurs  at  once.  But  objection  to  this  may  be 
made  by  any  member  who  may  demand  a  reading  in  full  of  the 
engrossed  copy.  If  this  is  done,  the  bill  must  be  laid  aside,  of 
course,  for  engrossment,  and  the  vote  deferred.  A  negative 
vote  on  the  question  of  engrossment  and  third  reading  defeats 
the  measure.  The  final  step  is  the  passage  of  the  bill,  the 
question  on  this  being  put  by  the  Speaker  at  once,  without 
waiting  for  a  motion  from  the  floor. 

After  the  House  has  passed  the  measure  and  it  has  been 
properly  authenticated,  it  is  transmitted  to  the  Senate  by 
message,  where  it  is  referred  to  a  committee  and  subjected  to 
practically  the  same  treatment  that  it  received  in  the  House. 
If  the  Senate  passes  the  Ijill  without  amendment,  it  is  returned 
to  the  House  where  it  goes  into  the  possession  of  the  Clerk 
and  is  immediately  enrolled  for  signature.  If  the  Senate  amends 
the  bill,  upon  return  to  the  House  it  goes  to  the  Speaker's  table 
and  at  the  i)roper  time  is  laid  l)efore  the  House.  Each  amend- 
ment is  taken  up  in  turn  and  voted  upon.  If  the  amendments 
are  accepted,  the  amended  bill  is  at  once  enrolled.  If  they  are 
not  accepted,  the  House  may  either  ask  for  a  conference  with 
the  Senate  or  merely  send  notice  of  its  disagreement,  leaving  it 
to  the  Senate  to  take  the  ne.xt  step,  by  receding  from  its  amend- 
ments or  asking  for  a  conference. 

When  a  conference  is  decided  upon,  each  liousr  api)oints  its 
representatives,  usually  three  in  number  and  known  as  man- 
agers. The  House  managers  arc  api)ointe(l  by  the  Speaker, 
who  selects  them  so  as  to  represent  both  the  majority  and 
minority  positions  upon  the  points  in  issue,  if  disagreement 
exists.  Usually,  also,  they  represent  the  difierent  political 
parties.  The  managers  of  the  two  houses  really  constitute  two 
distinct  committees.  The  (|uestions  they  may  consider  are 
(inly   iho.^e  ujioii   \\lii(li    llic   houses  are  in  disagreement.     The 


THE  HOUSE  OF  REPRESENTATIVES  —  PROCEDURE   1 69 

conference  may  be  either  "  free  "  or  "  simple."  A  free  con- 
ference is  one  in  which  the  managers  may  act  as  they  please 
upon  the  questions  in  controversy,  while  a  simple  conference 
is  one  which  confines  the  managers  to  specific  instructions  from 
the  house  they  represent. 

With  respect  to  the  instruction  of  managers  the  Senate  and 
the  House  of  Representatives  do  not  agree  in  their  practices. 
The  former  insists  on  free  conferences  and  only  rarely  has 
given  instructions ;  it  has,  in  fact,  sometimes  declined  to  partic- 
ipate in  the  conference  when  the  House  has  instructed  its 
managers.  The  latter,  however,  insists  upon  its  right  to  in- 
struct, and  usually  does  so.  It  is  the  business  of  the  conference 
committees  to  reach  an  agreement,  if  possible,  by  which  the 
differences  between  the  houses  may  be  settled.  Sometimes 
this  can  be  done  without  serious  difficulty,  one  house  receding 
from  its  position  or  a  compromise  being  agreed  upon  which 
both  houses  can  accept.  Occasionally,  however,  neither  house 
will  yield,  and  the  bill  over  which  the  contention  has  arisen  is 
lost.  If  a  compromise  agreement  is  reached,  the  committees 
report  to  their  respective  houses  which  proceed  to  approve  or 
disapprove  of  the  action  taken.  If  disapproval  is  given  in 
either  house,  the  measure  is  lost  unless  through  further  confer- 
ence some  other  solution  of  the  difl[iculty  may  be  found.  If 
approval  is  voted  by  both  houses,  the  measure  goes  to  the 
house  in  which  it  originated  for  enrollment.  It  is  carefully 
examined  by  the  Committee  on  Enrolled  Bills,  which  is  really 
a  joint  committee,  though  each  branch  acts  independently. 
After  the  enrollment  is  completed,  the  bill  is  ready  for  the 
signatures  of  the  Speaker  and  the  President  of  the  Senate. 
The  Speaker  always  signs  first,  whether  it  be  a  House  or  a 
Senate  bill,  after  which  it  is  presented  to  the  President  of  the 
Senate.  It  is  then  ready  for  transmission  to  the  President 
for  executive  approval  or  disapproval.  If  the  President 
approves,  he  simply  signs  the  measure  and  it  becomes  a  law  to 
take  effect  at  the  time  designated  by  Congress.  It  is  then 
deposited  in  the  office  of  the  Secretary  of  State,  who  is  the 
custodian  of  the  laws  of  the  United  States.  If  the  President 
disapproves  of  the  bill,  he  returns  it  to  the  House  in  which  it 
originated,  with  a  message  stating  his  reasons  for  withholding 
his  signature.     It  is  then  for  Congress  to  determine  whether 


17©  COMPARATIVE  FREE  GOVERNMENT 

the  bill  shall  become  law,  notwithstanding  the  President's 
veto.  If  both  houses  pass  it  by  the  necessary  two-thirds  vote, 
it  becomes  a  law  and  is  transmitted  to  the  Secretary  of  State 
by  the  presiding  officer  of  the  house  which  acted  on  it  last. 

This  brief  statement  describes,  in  the  main,  the  stages  through 
which  a  bill  passes  in  the  process  of  becoming  a  law.  There  is, 
of  course,  a  multitude  of  intricate  details  of  procedure  which 
cannot  be  given  here.  Before  leaving  the  subject,  however, 
attention  should  be  directed  to  at  least  two  things.  The  first 
is  that  the  procedure  outlined  is  used  for  public  and  private 
bills  alike.  There  is  no  special  private  bill  procedure  such 
as  is  used  in  the  British  House  of  Commons.^  This  is  an  un- 
fortunate fact  because  of  the  very  large  number  of  private  bills 
introduced  and  acted  upon  each  session.  Both  houses  of  Con- 
gress could  greatly  increase  their  efficiency  and  improve  the 
character  of  their  legislation  by  providing  a  suitable,  more 
stringent  procedure  for  private  bills.  The  second  point  to  be 
mentioned  is  that  there  is  no  legislative  draftsman  or  drafting 
bureau  whose  duty  it  is  to  put  bills  into  the  best  possible  form. 
Each  member  may  not  only  introduce  as  many  bills  as  he 
pleases,  but  may  draft  them  in  any  way  that  suits  his  fancy. 
The  result  is  a  vast  amount  of  legislation  that  is  very  faulty  in 
its  construction.  Congress  has  been  slow  to  see  the  value  of 
expert  draftsmanship,  such  as  that  afforded  by  the  English 
Parliamentary  Counsel  and  by  the  drafting  bureaus  in  a  num- 
ber of  the  American  States.  The  interest  in  scientific  legis- 
lation has  increased  rapidly  in  recent  years,  and  it  is  safe  to 
say  that  the  near  future  will  witness  the  establishment  of  a 
congressional  drafting  bureau  of  some  kind.  The  volume  of 
business  confronting  the  House  of  Representatives  each  session 
is  so  great,  and  is  increasing  so  rapidly,  that  greater  care  and 
accuracy  in  the  drafting  of  measures  are  absolutely  necessary. 
As  an  illustration  of  the  amount  of  work  the  House  must  look 
after,  Professor  Beard  says  that  there  were  introduced  into 
the  House  during  the  Fifty-ninth  Congress  26,154  bills,  257 
joint  resolutions,  62  concurrent  resolutions,  898  simi)le  resolu- 
tions, and  8174  reports.  Of  these,  692  public  bills  and  6940 
private   bills,    mostly   ])cnsion    measures,    were   passed.-     The 

>  Below,  Chap.  XXXV. 

*  Beard,  "  American  Government  and  I'olilics,"  New  and  Revised  lulilion,  p.  ^71. 


THE  HOUSE  OF   REPRESENTATIVES  —  PROCEDURE      171 

difficulty  of  legislating  wisely,  under  such  conditions,  with 
proper  regard  to  form  as  well  as  substance,  is  superlatively 
great. 

Political  Parties  in  the  House.  —  As  has  been  suggested 
repeatedly  in  the  foregoing  discussion,  the  political  parties  are 
vital  factors  in  the  organization  and  activities  of  the  House  of 
Representatives.  Some  further  comment  as  to  their  place 
and  influence  is  necessary. 

Attention  has  been  called  to  the  tendency  of  the  committee 
system  to  destroy  the  unity  of  the  House  of  Representatives. 
This  tendency  is  a  very  real  one,  whose  significance  is  not  to 
be  underestimated.  Yet  there  is  a  degree  of  unity  which 
should  not  be  overlooked,  for  without  it  the  House  would  be 
hopelessly  inefficient.  This  unity  comes  from  the  fact  that 
the  party  controlling  the  House  makes  itself  accountable  for 
the  conduct,  not  only  of  the  House  as  a  whole,  but  also  of  the 
committees.  The  House  is  always  organized  on  party  lines. 
The  Speaker,  the  House  officers,  the  chairmen,  and  majority 
of  the  members  of  each  committee  are  all  members  of  the 
dominant  party.  The  House  is  organized  so  as  to  permit  the 
majority  party  to  carry  out  its  will.  And,  as  we  have  seen,  the 
rules  of  the  House  have  been  modified  from  time  to  time  so  as 
to  insure  this  result  against  attempts  at  obstruction  on  the 
part  of  the  minority.  The  responsibility  of  the  party  in  con- 
trol, it  is  true,  is  not  so  direct  and  inescapable  as  it  ought  to  be, 
but  by  no  means  can  it  be  said  to  be  non-existent.  Particularly 
is  this  responsibility  forced  upon  the  majority  party  for  its 
action  upon  questions  arising  in  the  field  of  contentious  politics. 
Again  and  again  the  voters  at  the  polls  have  given  rebuke  to 
those  in  control  of  Congress  for  failure  to  carry  out  their  man- 
dates upon  partisan,  controversial  questions,  such  as,  for  ex- 
ample, the  tariff.  However,  questions  of  this  kind  are  few  in 
number.  It  is  only  on  comparatively  rare  occasions  that 
either  of  the  houses  divides  on  strict  party  lines.  Upon  most 
questions  the  lines  of  cleavage  cut  across  party  divisions.  This 
is  an  important  fact.  Yet  the  party  lines  exist,  and  party 
responsibility  at  times  is  keenly  felt.  Moreover,  the  parties, 
through  their  leaders,  are  constantly  maneuvering  for  position 
in  order  to  have  the  advantage  in  the  congressional  and  pres- 
idential elections.     The  minority  party,  particularly,  is  alert 


172  COMPARATIVE   FREE   GOVERNMENT 

and  active  in  its  efforts  to  discredit  the  majority,  to  "  put  it 
in  a  hole,"  as  the  saying  is.  This  critical,  at  times  even  hyper- 
critical, attitude  of  opposition  is  directed  most  frequently  towards 
the  President  and  those  in  control  of  the  administration  of 
government.  In  fact,  the  executive  is  never  free  from  this, 
whether  he  is  the  leader  of  the  party  which  is  in  the  majority 
or  in  the  minority  in  the  houses  of  Congress.  It  is  the  business 
of  the  members  of  the  President's  party  to  defend  the  adminis- 
tration, to  answer  the  charges  made  against  it  by  the  opposition, 
whether  unjust  or  just.  The  discussions  in  both  houses  are 
filled  with  this  sort  of  thing.  As  a  result  the  issues  to  be  fought 
out  in  the  elections  are  for  the  most  part  formulated  in  Congress, 
and  the  leadership  of  the  parties  determined.  This  fact,  re- 
gardless of  whether  or  not  strict  party  votes  are  few  or  many, 
gives  to  Congress  a  central  place  and  influence  in  the  organized 
party  life  of  both  the  Nation  and  the  States.  The  leadership 
of  Congress  and  its  influence  upon  party  organization  and 
activity  cannot  be  measured,  indeed  are  not  even  suggested, 
by  the  degree  of  partisanship  and  party  strife  to  be  found  in 
the  legislative  work  of  the  Senate  and  the  House. ^ 

The  Party  Caucus  and  House  Leadership.  —  The  distinctive 
party  organization  in  Congress  is  the  caucus.  This  is  found  in 
each  house  and  is  maintained  by  each  of  the  parties.  The 
function  of  the  caucus  with  respect  to  the  determination  of 
legislative  policies  has  already  been  described  in  the  chapter 
on  the  Senate.-  Where  caucus  action  is  taken  by  the  majority 
party  upon  a  pending  measure,  the  real  decision  of  the  matter 
is  transferred  from  the  properly  constituted  legislative  body, 
established  by  the  Constitution,  to  an  unofficial,  voluntary 
group,  which  acts  without  the  slightest  legal  responsibility. 
This  is  no  less  true  of  the  House  caucus  than  of  the  Senate. 
All  members  of  a  party  are  members  of  that  party's  caucus. 
Participation  in  the  caucus  is  voluntary,  however ;  any  one 
may  refuse  to  take  part  if  he  wishes,  although  the  recalcitrant 
member  is  usually  sui^jccted  to  a  good  deal  of  pressure  from  his 
I)arty  associates.  The  caucus  is  strictly  a  party  institution 
anrl  its  sole  purpose  is  to  look  after  |)arly  iiiti-rc-sts. 

'  For  a  fliscussion  of  conRrcssional   Icailcrship  and   llie  relation  of  ConRrcss  to 
the  political  parties,  see  Macy,  "  Party  Organization  and  Machinery,"  Chap.  IV. 
*  Above,  p.  134. 


THE  HOUSE  OF   REPRESENTATIVES  —  PROCEDURE      1 73 

Aside  from  the  part  the  caucus  frequently  plays  in  deter- 
mining the  party  attitude  upon  pending  legislation,  it  is  an 
institution  of  real  significance,  for  it  is  in  the  caucus  that  to  a 
large  degree  the  selection  of  party  leaders  in  Congress  actually 
takes  place.  It  is  in  the  caucus  of  the  majority  party  that 
the  choice  of  a  Speaker  is  really  made.  The  formal  election 
in  the  House  is  merely  a  ratification  of  the  caucus  action.  It 
is  in  the  caucus  also  that  the  committee  on  committees  is  ap- 
pointed. It  is  here  that  the  party's  floor  leader  is  named  and 
the  chairmen  of  the  leading  committees  practically  agreed  upon. 
It  is  here  that  the  party  whips  are  chosen,  and  the  members  of 
the  Congressional  Campaign  Committee,  an  important  branch 
of  the  national  party  organization.^  The  caucus  is  governed 
by  rules  of  its  own  adoption,  and  may  be  called  for  any  proper 
purpose  upon  the  request  of  a  sufficient  number  of  its  members. 
Its  meetings  are  behind  closed  doors,  although  the  general 
public  is  usually  informed  by  the  newspapers  as  to  what  tran- 
spires. 

The  minority  caucus,  in  its  organization  and  functions,  is 
identical  with  that  of  the  majority.  It  differs  from  the  latter 
only  in  the  fact  that  it  does  not  have  the  votes  to  control  the 
action  of  the  House.  It  selects  the  minority  floor  leader  who  is 
always  given  the  complimentary  vote  of  his  party  associates 
for  the  position  of  Speaker.  It  looks  after  the  committee  as- 
signments of  the  minority,  chooses  the  whips,-  names  the 
members  of  its  party's  Congressional  Campaign  Committee, 
and  frequently  determines  the  party  position  upon  the  legis- 
lative proposals  of  the  majority.  It  is  its  business  to  make 
all  the  trouble  it  can  for  the  majority  through  criticism  and 
opposition. 

Lack  of  leadership  is  one  of  the  leading  criticisms  brought 
against  the  House  of  Representatives  by  many  writers  upon 
American  government.  There  is  merit  in  the  criticism.  Re- 
ponsible  leadership  of  the  type  that  characterizes  parliamentary 
or  cabinet  government  certainly  does  not  exist.  To  say, 
however,  that  there  is  no  leadership  at  all,  even  that  there  is 
no  effective  leadership  in  the  House,  is  very  far  from  correct. 
One  of  the  prime  functions  of  the  party  caucuses  which  lie 
back  of  the  formal,  official  House  organization,  is  to  provide 

'  Below,  Chap.  XVII.  s  Below,  Chap.  XL. 


174  COMPAR-VnVE   FREE   GOVERNMENT 

capable  leaders  and  maintain  party  discipline.  The  men  who 
stand  out  conspicuously  as  leaders  are  the  Speaker,  the  lloor 
leader  of  the  majority,  who  is  always  the  chairman  of  the 
Ways  and  Means  Committee,  and  the  floor  leader  of  the  minority. 
These  men  are  all  selected  by  their  respective  party  caucuses 
and  are  chosen  because  of  their  ability,  gained  through  long 
experience  in  the  House,  to  guide  their  parties  in  the  parliamen- 
tary and  legislative  controversies  that  arise.  Under  the  older 
rules  the  Speaker  was  preeminent  in  his  position  as  majority 
leader,  and  had  as  his  chief  lieutenant  the  majority  floor  leader. 
Under  the  rules  in  force  since  1910  the  Speaker  has  lost  and 
the  floor  leader  has  gained  in  power  and  prestige.  It  is  the 
latter  who  is  now  most  active,  and  if  he  does  not  surpass  the 
Speaker  in  actual  power,  he  is  at  least  the  Speaker's  equal.  The 
developments  of  recent  years  seem  to  indicate  a  still  larger 
sphere  for  him,  and  make  him  comparable  in  some  respects  to 
the  Old  World  prime  ministers  so  far  as  they  are  engaged  in 
legislative  work.  He  has  nothing  to  do,  of  course,  with  admin- 
istrative or  executive  activities.  Any  fair,  adequate  discussion 
of  the  House  of  Representatives,  it  is  clear,  must  give  recognition 
to  the  commanding  position  of  the  majority  floor  leader,  and 
accord  to  the  House  a  leadership  that  is  clearly  defined  and 
highly  efficient.  As  a  matter  of  fact  the  House  could  not  do 
its  work  without  such  leadership. 

General  Observations.  —  In  concluding  this  discussion  of 
the  House  of  Representatives  several  significant  facts  should 
be  noted. 

1.  The  House  is  materially  diffcrenl  from  what  it  was  ex- 
pected to  be  by  the  framers  of  the  Constitution.  It  is  in  no 
sense  the  uncontrolled,  turbulent  body  that  was  anticipated. 
Quite  the  contrary,  in  fact,  is  true.  No  other  branch  of  the 
government  is  under  more  rigid  discipline. 

2.  Traditi(jnally,  the  House  is  the  popular  branch  of  the 
national  legislature.  Yet  in  practice  it  is  no  more  so  than  is 
the  Senate.  In  fact,  it  may  be  doubterl  whether  oftentimes 
it  is  as  directly  resjjonsive  to  public  ojjinion  as  is  the  Senate. 

,5.  There  is  great  inequality  among  members  of  the  House 
with  respect  to  power  and  influence,  aside  from  that  which 
is  due  to  difference  in  natural  abilities.  There  are  always  a 
few  in  any  legislative  bodx'  wlio  arc  bound  to  be  more  influential 


THE  HOUSE  OF   REPRESENTATIVES  —  PROCEDURE      1 75 

than  their  associates ;  these  are  the  leaders.  But  the  House 
organization  is  such  that,  as  a  rule,  a  comparatively  few  control 
the  House's  action.  They  are  in  a  position  to  thwart  the 
wishes  of  members  who  are  their  equals  under  the  Constitu- 
tion. 

4.  As  a  legislative  body  the  House  has  not  held  its  own  with 
the  Senate.  Unquestionably  the  Senate  is  a  more  vital  factor 
in  legislation  than  is  the  House.  Even  the  exclusive  power  to 
originate  revenue  legislation,  given  to  the  House  by  the  Con- 
stitution, was  not  sufficient  to  keep  it  in  the  ascendancy.  As 
we  have  seen,  the  Senate  has  been  able  practically  to  nullify 
that  constitutional  prerogative  through  its  right  of  amendment. 
The  other  exclusive  powers  of  the  House,  —  to  vote  impeach- 
ments and  choose  the  President  in  case  of  failure  to  elect  on  the 
part  of  the  electoral  college,  —  though  at  times  of  very  great 
importance,  are  not  of  a  nature  to  strengthen  it  in  legislative 
controversies  with  the  Senate. 

5.  The  House,  to  a  notable  degree,  has  become  subject  to 
the  influence  of  the  President.  Executive  leadership  in  legis- 
lation has  been  much  more  successful  in  the  lower  house  than 
in  the  upper.  By  establishing  proper  relations  with  those 
who  are  at  the  head  of  the  House  organization,  a  strong  Pres- 
ident can  force  through  the  legislative  projects  that  he  favors. 

6.  The  House  does  not  have  the  weight  with  the  general 
public  that  it  once  had,  although  it  has  gained  materially  in 
mere  efficiency  as  a  legislative  machine.  By  giving  so  much 
power  to  its  leaders,  by  establishing  such  effective  discipline, 
by  dividing  up  the  work  among  so  many  committees,  and  by 
practically  eliminating  debate,  the  House  has  cut  itself  off  from 
the  means  of  influencing  in  any  profound  way  the  thought  of 
the  Nation.  The  discussions  in  the  Senate  are  of  much  more 
significance  in  this  respect  than  anything  that  is  done  in  the 
House.  And  most  powerful  of  all  is  the  influence  of  the  Pres- 
ident. 

REFERENCES 

Beard.     American  Government  and  Polilics,  Edition  1910,  Chaps.  XII,  XIII, 

XIV. 
Bryce.     The  American  Commonwealth,  Edition  1910,  Vol.  I,   Chaps.  XIII 

to  XXI  inclusive. 
FoLLETT.     The  Speaker  of  the  House  of  Representatives. 


176  COMPARATIVE   FREE   GOVERNMENT 

Ford.     The  Rise  and  Gro-cvUi  of  American  Politics,  Chaps.  XIX,  XX. 

Hart.     Actual  Government,  Chaps.  XIII,  XIV. 

McCall.     The  Business  of  Congress. 

McCoNACHiE.     Congressional  Committees. 

Reinsch.     American  Legislatures  and  Legislative  Methods,  Chaps.  I,  II. 

Reinsch.     Readings  on  American  Federal  Government,  Chaps.  VII,  VIII. 

Wilson.     Constitutional  Government  in  the  United  States,  Chap.  IV. 

WooDBURN.     The  American  Republic,  Chap.  V. 

Young.     TIte  New  American  Government  and  its  Work,  Chap.  III. 


CHAPTER  XIV 

The  Party  System 

One  of  the  most  interesting,  even  phenomenal  develop- 
ments in  the  political  life  of  the  United  States,  is  the  rise 
and  growth  of  political  parties.  There  is  nothing  in  the  expe- 
riences of  other  nations,  not  even  England,  that  is  comparable 
with  it.  Particularly  is  this  true  with  respect  to  the  growth  of 
party  organization,  for  in  no  other  country  of  the  world  has  the 
machinery  of  party  life  and  activity  been  developed  to  so  high  a 
degree  of  perfection  and  efficiency  as  in  the  United  States. 
This  is,  indeed,  one  of  the  marvels  of  American  politics,  and  no 
student  can  understand  the  operation  of  government,  in  Nation, 
States,  and  minor  political  divisions  as  well,  unless  he  is  familiar 
with  the  purposes,  organization,  and  methods  of  the  poHtical 
parties. 

As  in  England,  the  parties  hold  a  central  place  in  the  govern- 
ment, although  the  government  of  the  United  States  is  not  a  true 
party  government,  as  is  the  case  with  the  government  of  Eng- 
land.^ The  principle  of  the  separation  of  powers,  fundamental 
in  the  United  States  Constitution,  makes  genuine  party  govern- 
ment impossible.  Yet  usually  the  United  States  is  spoken  of  as 
being  governed  by  parties;  and  to  a  very  considerable  degree 
this  is  true  in  fact  as  well  as  in  appearance.  It  is  the  parties  that 
furnish  the  motive  power  for  running  the  government  machine. 
It  is  the  parties  that  control  the  nomination  and  election  of  the 
President  and  the  members  of  Congress.  It  is  the  parties,  to  a 
large  degree,  that  determine  national  policies.  The  great  polit- 
ical struggles  that  stir  the  Nation  to  the  depths  are  party 
struggles.  If  the  parties  were  suddenly  to  cease  to  exist,  the 
operations  of  government  would  be  most  seriously  affected. 

Yet  the  political  parties  are  wholly  without  constitutional 
status,  and  only  in  a  minor  way  have  they  received  formal  legal 
»  Below,  Chaps.  XXX,  XXXVII. 
N  177 


178  COMPARATIVE   FREE   GOVERNMENT 

recognition  from  the  national  government.  They  are  volun- 
tary, extra-constitutional  bodies.  They  are  a  vital  part  of  the 
working  constitution,  but  have  no  place  in  the  written  Consti- 
tution. They  are  the  product  of  custom  and  tradition,  the 
outgrowth  of  the  Nation's  own  experience,  and  not  the  result 
of  formal  action  by  any  legally  constituted  authority. 

Constitution  Makers  and  Political  Parties.  —  The  framers  of 
the  Constitution  did  not  beUeve  in  political  parties.  In  fact, 
they  vigorously  opposed  party  struggles  and  feared  for  the 
existence  of  the  Republic  if  parties  should  spring  up.  They 
desired  a  government  that  would  be  free  from  party  or  "  fac- 
tional "  strife,  and  thought  that  with  the  constitutional  system 
finally  agreed  upon  their  hopes,  in  the  main,  would  be  realized. 
This  attitude  was  given  frequent  expression  in  the  constitutional 
convention  and  in  the  discussions  that  ensued  when  the  Consti- 
tution was  submitted  for  ratification.  James  Madison  was  repre- 
sentative of  his  associates  when  he  said  that  among  the  many 
advantages  "  promised  by  a  well  constructed  Union,  none  de- 
serves to  be  more  accurately  developed  than  its  tendency  to 
break  and  control  the  violence  of  faction.  The  friend  of  popular 
governments  never  finds  himself  so  much  alarmed  for  their  char- 
acter and  fate,  as  when  he  contemplates  their  propensity  to  this 
dangerous  vice."  '  Washington,  also,  in  his  famous  Farewell 
Address  solemnly  warns  the  people  against  the  "  baneful  effects 
of  the  Spirit  of  Party."  This,  because  of  its  "  continual  mis- 
chiefs," it  is  the  duty  of  a  wise  people  to  discourage  and  re- 
strain. "  It  serves  always  to  distract  the  Puljlic  Councils,  and 
enfeeble  the  Public  athiiinistration.  It  agitates  the  community 
with  ill-founded  jealousies  and  false  alarms,  kindles  the  animos- 
ity of  one  i)art  against  another,  foments  occasionally  riot  and 
insurrection.  It  opens  the  doors  to  foreign  inlluence  and 
c()rru[)tion,  which  find  a  facilitated  access  to  the  Government 
itself  through  the  channels  of  party  passions.  Thus  the  policy 
and  the  will  of  one  country  are  subjected  to  the  policy  and  the 
will  of  another. 

"  There  is  an  opinimi  that  i)artii's  in  free  countries  are  useful 
c^iecks  upon  the  administration  ot  the  Covernmcnt  and  serve 
to  keep  alive  the  S|)irit  of  Liberty.  This  within  certain  limits 
is  probably  true  —  and  in  Governments  of  a  Monarcliical  cast, 

'  The  Fcilcraliil,  No    10. 


THE  PARTY  SYSTEM  179 

Patriotism  may  look  with  indulgence,  if  not  with  favour,  upon 
the  spirit  of  party.  But  in  those  of  the  popular  character,  in 
Governments  purely  elective,  it  is  a  spirit  not  to  be  encouraged. 
From  their  natural  tendency,  it  is  certain  there  will  always 
be  enough  of  that  spirit  for  every  salutary  purpose,  —  and 
there  being  constant  danger  of  excess,  the  effort  ought  to  be,  ' 
by  force  of  pubhc  opinion,  to  mitigate  and  assuage  it.  A  fire 
not  to  be  quenched,  it  demands  a  uniform  vigilance  to  prevent 
its  bursting  into  a  flame,  lest,  instead  of  warming,  it  should 
consume." 

That  this  was  the  attitude  of  the  constitution  makers  is  beyond 
question,  and  yet  it  is  a  bit  hard  to  see  how  they  could  have  failed 
to  comprehend  the  inevitableness  of  party  activity.  Party 
spirit  was  even  then  becoming  active  and  parties  were  forming. 
Indeed,  the  constitution  makers  themselves,  at  first  uncon- 
sciously but  later  with  full  recognition  of  what  they  were  doing, 
contributed  to  the  upbuilding  of  those  very  agencies  which,  in 
their  former  opinion,  endangered  the  Republic.  Washington's 
address  was  hardly  finished  before  party  spirit  blazed  forth  and 
the  fines  began  to  form  for  the  contest  over  the  selection  of  his 
successor. 

Origin  of  Parties  in  America.  —  The  origin  of  the  parties  is 
not  hard  to  discover,  although  the  exact  moment  when  parties 
became  a  reality,  of  course,  cannot  be  fixed.  Certainly  it  is 
true  that  prior  to  the  Revolution  there  were  no  real  parties  in 
the  American  colonies.  Indeed,  the  same  may  be  said  of  the 
period  of  the  Revolution.  During  the  Colonial  era  the  people 
were  divided  into  two  groups  or  factions  corresponding  to  the 
factional  or  party  divisions  in  England.  Accepting  the  English 
terminology,  one  was  called  Whig,  and  the  other  Tory,  and  each 
sympathized  in  general  with  the  views  of  the  party  of  its  own 
name  in  the  mother  country.  In  the  period  of  the  Revolution, 
also,  there  were  two  factions.  The  Whigs  supported  the  Revo- 
lution and  were  sometimes  called  Patriots ;  the  Tories  opposed 
the  Revolution  and  were  known  as  Loyahsts.  But  it  is  far 
from  correct  to  consider  these  groups  true  political  parties. 
They  were  merely  factions,  and  the  distinction  between  poUtical 
factions  and  political  parties  is  clear  and  unmistakable.  The 
party  may  come  into  existence  through  the  faction,  may  grow 
out  of  it,  but  the  two  are  fundamentally  different  in  their  nature. 


l8o  COMPARATIVE   FREE   GOVERNMENT 

The  party  is  characteristic  of  free  government,  while  the  faction 
is  characteristic  of  despotism.^ 

It  was  not  until  the  time  of  the  constitutional  convention, 
1787,  that  there  sprang  up  certain  fundamental  differences  of 
opinion  which  resulted  in  the  organization  of  political  parties. 
In  the  debates  of  the  convention  and  the  discussions  which 
occurred  in  all  the  States  upon  the  question  of  ratifying  the  Con- 
stitution, there  developed  one  great,  fundamental  issue  with 
respect  to  the  nature  of  the  government.  This  issue  involved 
the  powers  of  the  States  as  against  those  of  the  new  national 
government  provided  for  in  the  Constitution.  Those  upon  one 
side  sought  a  strong  and  virile  central  government,  placing 
emphasis  upon  the  elements  of  unity  and  efficiency ;  those  on  the 
other  wished  to  limit  the  national  authority  to  the  lowest  point 
possible,  placing  emphasis  upon  individual  liberty  and  the 
rights  of  the  States.  In  the  vigorous  discussion  which  followed 
the  submission  of  the  proposed  Constitution  to  the  people  of 
the  States  for  their  action,  the  prominent,  immediate  issue  was, 
of  course,  whether  or  not  the  Constitution  should  be  ratified. 
Many  and  varied  were  the  arguments  advanced  for  and  against 
ratification  ;  and  many  and  varied  were  the  principles  and  issues 
dragged  into  the  debate.  But  back  of  all  these  lay  the  supremely 
important  issue,  just  referred  to,  involving  the  relationship 
between  States  and  Nation ;  and  it  was  because  of  this  that  the 
first  political  parties  came  into  e.xistence,  —  the  one,  standing 
for  national  power,  with  Alexander  Hamilton  as  its  most  active 
leader,  and  the  other,  standing  for  the  States,  under  the  leader- 
ship of  Thomas  Jefferson.  There  were,  in  addition  to  this  under- 
lying issue,  involving  the  interpretation  of  the  Constitution, 
specific  questions  of  policy  brought  forward  during  Washington's 
administrations,  about  which  radically  dilTering  opinions  were 
held,  and  which  accentuated  the  development  of  part\-  spirit  and 
party  activity.  Although  forming,  it  cannot  be  said  that  the 
parlies  actually  existed  until  it  became  plain  that  Washington 
would  not  accef)t  a  third  term  as  President.  When  that  fact 
was  made  known,  the  i)arty  alignment  speedily  followed  and 
the  Nation  was  soon  in  the  ihrofs  of  a  bilter  ]);uiisan  struggle 

•  For  a  discussion  of  the  nature  of  the  modern  political  party  and  the  distinction 
between  party  and  faction,  see  Macy,  "  Political  I'arlies  in  the  United  States," 
Chaj).  I. 


THE   PARTY   SYSTEM  l8l 

of  the  kind  Washington  condemned  with  such  solemn  earnestness 
in  his  farewell  address. 

The  party  of  Hamilton  was  called  the  Federalist  party,  and 
that  of  Jefferson  the  Democratic-Republican  party.  The 
latter  was  sometimes  called  Anti-Federahst.  It  should  be  noted, 
however,  that  the  use  of  these  names  did  not  identify  the  two 
parties  with  the  groups  which  were  contending  over  the  ratifica- 
tion of  the  Constitution  and  which  made  use  of  these  terms. 
Those  who  were  in  favor  of  the  ratification  were  called  Federalists 
and  those  who  opposed  ratification  were  called  Anti-Federalists. 
In  the  main  the  party  of  Hamilton,  which  bore  the  name  of 
Federalist,  was  made  up  of  those  who  worked  for  ratification, 
but  not  exclusively  so.  Some  of  those  most  active  at  first  in 
opposition  to  the  Constitution,  joined  with  Hamilton.  Like- 
wise, the  party  of  Jefferson,  though  in  the  main  composed  of 
those  who  opposed  the  acceptance  of  the  Constitution,  was  not 
exclusively  so,  for  many  of  those  who  worked  untiringly  for  the 
ratification  of  the  Constitution,  joined  with  Jefferson  in  pro- 
moting the  Democratic-Repubhcan  party.^  Jefferson  himself, 
though  not  a  member  of  the  convention  which  framed  the 
Constitution,  was  favorable  to  its  acceptance  and  helped  set 
the  new  government  on  its  feet.  The  Jefferson  party,  however, 
was  the  party  of  strict  construction  and  was  opposed  to  the 
extension  of  national  power  through  the  interpretation  of  the 
Constitution  by  the  courts.  The  Federalists,  on  the  other  hand, 
desired  a  broad,  liberal  interpretation  and  full  recognition  of 
national  authority. 

It  is  not  the  purpose  here  to  give,  even  in  brief,  the  history 
of  the  political  parties.  All  that  is  desired  is  to  make  plain  the 
fact  that  the  origin  of  the  parties  is  to  be  traced  to  this  funda- 
mental issue  involving  the  extent  of  the  national  power  and  its 
enlargement  through  constitutional  interpretation.  The  an- 
tagonistic views  that  prevailed  with  respect  to  this  question 
made  it  inevitable  that  differences  of  opinion  would  arise  over 
specific  questions  of  national  policy ;  and  out  of  these  differences 
grew  the  political  parties. 

Separation  of  Powers  and  Party  Development.  —  One  other 
exceedingly  significant  point  must  be  considered  in  accounting 
for  the  swift  development  of  the  parties ;  and  that  is  the  inevi- 

*  Woodburn,  "  Political  Parties  and  Party  Problems  in  the  United  States."  p.  13. 


1 82  COMPARATIVE   FREE   GOVERNMENT 

table  lack  of  harmony  between  the  legislative  and  executive 
branches  of  the  government  under  the  separation  of  powers  pro- 
vided for  by  the  Constitution,  l^hese  departments  were  not 
only  separated,  but  were  to  be  kept  so  through  a  specific  defini- 
tion of  the  powers  and  duties  of  each.  Moreover,  each  was  to 
spy  on  the  other,  as  it  were,  and  both  were  to  be  held  in  their 
proper  places  by  an  elaborate  system  of  checks  and  balances. 
Antagonism,  friction,  conflict  are  unavoidable  under  such  an 
arrangement.  Yet  harmony,  good  will,  and  cooperation  between 
these  departments  are  essential  in  any  smoothly  working, 
efl5cient  government.  Without  a  reasonable  amount  of  co- 
operation between  these  branches  the  machinery  of  government 
will  not  run.  The  need  and  value  of  this  were  not  adequately 
comprehended  by  the  framers  of  the  Constitution,  while  the 
dangers  were  greatly  exaggerated.  Only  one  result  could  ensue. 
The  gap,  wide  and  deep,  between  the  executive  and  legislative 
departments  must  be  bridged  over  in  some  way  or  other.  Some 
agency  must  be  brought  into  being  to  establish  a  workable  rela- 
tionship between  them.  If  this  could  not  be  done  in  a  formal, 
constitutional  manner,  then  some  informal,  extra-constitutional 
device  must  be  discovered.  This  unifying,  harmonizing  function 
must  be  performed. 

It  happens  that  this  gap  is  bridged,  this  unifying  function  is 
performed,  by  the  poUtical  parties ;  and  in  doing  this  the  parties 
render  to  the  Nation  one  of  their  greatest  services.  It  is  the 
function  which  the  cal^nct  performs  in  a  parliamentary  system 
of  government,  and  without  which  ceaseless  confusion  and  dis- 
cord would  prevail.  The  parties  fill  out  with  ilcsh  and  l:)lood,  .so 
to  speak,  the  skeleton  organization  of  government  set  up  by 
the  Constitution.  "  Party  organization  acts  as  a  connective 
tissue,  enfolding  the  separate  organs  of  government,  and  tending 
to  establish  a  unity  of  control  which  shall  adapt  tlic  government 
to  the  uses  of  popular  sovereignty."  ' 

It  cannot  be  said  that  the  parties  actually  grew  out  of  this 
sharp  sei)aration  of  governmental  deparlnunts,  which,  from  the 
very  nature  of  things,  must  be  in  close  and  harmonious  relations; 
as  we  have  seen,  parties  were  forming  even  before  the  new  govern- 
ment was  set  in  motion.  But  it  can  be  said  that  the  develop- 
ment of  the  parties  was  greatly  accentuated  by  this  separation. 

•  Ford,  "The;  Rise  ;in<l  (Innvth  of  American  I'olitics,"  p.  215. 


THE   PARTY   SYSTEM  183 

Moreover,  the  conclusion  must  be  that,  even  though  there  had 
been  in  the  beginning  no  clash  of  opinions  over  the  interpretation 
of  the  Constitution  and  the  powers  of  the  States  and  of  the 
Nation,  sooner  or  later  the  political  party  or  some  agency  similar 
to  it  would  have  been  devised  to  discharge  this  unifying,  co- 
ordinating function.  It  is,  therefore,  well  within  reason  to 
assert  that  the  American  party  system  is  the  resultant  of  the 
peculiar  constitutional  organization  of  the  legislative  and  execu- 
tive departments,  and  it  is  proper  to  emphasize  this  particular 
unifying  function  of  the  parties  in  connection  with  a  discussion 
of  their  origin  and  early  development.  In  spite  of  the  hopes  and 
beUefs  of  the  constitution  makers  to  the  contrary,  parties  were 
inevitable  ;  the  very  structure  of  the  government  made  them  so. 

Character  of  the  Party  System.  —  The  American  party  sys- 
tem, like  the  English,  is  of  the  dual  party  type,  and  is  funda- 
mentally different  in  its  nature  from  the  group  system  that  pre- 
vails in  the  countries  of  Continental  Europe,  where,  in  a  single 
legislative  assembly,  there  may  be  a  dozen  or  more  political 
parties.  With  the  exception  of  a  short  period  of  transition 
following  the  break-up  of  the  Federalist  party,  there  have  always 
been  in  the  United  States  two  leading  parties  which  struggled 
for  the  control  of  the  government.  Many  so-called  third  parties 
have  appeared  and  disappeared  in  the  course  of  the  Nation's 
history,  but  the  two-party  character  of  the  system  has  been 
consistently  maintained. 

The  theory  of  the  system  is  easily  stated  ;  and  the  mere  state- 
ment of  it  makes  plain  the  fact  that  it  has  never  been  in  perfect 
operation.  That  could  not  reasonably  be  expected,  indeed,  since 
the  system  has  never  been  fully  understood  nor  fully  approved 
by  the  American  people.  Until  this  is  so,  the  system  cannot  be 
said  to  have  had  a  fair  trial.  It  is  possible  that  it  never  will  have 
a  fair  trial  since,  although  the  typical  American  view  is  that  the 
government  of  the  United  States  is  a  government  by  parties, 
there  is  a  large  and  perhaps  increasing  number  of  people  who 
profess  not  to  believe  in  parties  and  seek  to  thwart  the  develop- 
ment of  a  thorough-going  party  system.  The  theory  involves 
the  division  of  the  voters  into  two  groups  and  the  maintenance 
of  two  great  organizations,  evenly  balanced  as  to  numbers,  under 
the  guidance  of  experienced,  capable  leaders,  and  with  local 
organizations  sustained  in  every  part  of  the  Union.     The  two 


1 84  COMPARATIVE   FREE   GOVERXMEXT 

parties  include  all  the  voters  and  each  must  be  effectively 
organized,  from  the  Nation  on  down  to  the  smallest  poUtical 
subdivision.  These  parties  are  like  huge  armies,  trained  and 
ready  for  battle.  The  object  of  their  struggles  is  the  control  of 
the  government,  not  for  the  purpose  of  destroying  it,  or  under- 
mining it,  or  subverting  its  constitutional  structure,  but  for  the 
purpose  of  using  its  power  and  its  agencies  for  putting  into  effect 
certain  public  poUcies  which  the  majority  of  the  voters  demand 
and  for  which  the  winning  party  stands.  Each  of  the  parties 
seeks  to  serve  the  whole  Nation  and  therefore  represents  the 
whole  Nation.  The  American  party,  according  to  the  theory 
on  which  it  rests,  cannot  represent  a  locality  or  a  section,  but 
must  represent  the  whole  country ;  it  cannot  represent  a  partic- 
ular class,  but  must  represent  all  classes ;  it  cannot  represent 
a  special  interest,  but  must  stand  for  the  totality  of  interests. 
If  a  party  becomes  the  champion  of  any  particular  policy,  like 
tariff  protection,  or  free  trade,  it  must  rest  its  claims  to  preference 
and  its  advocacy  of  the  policy  for  which  it  stands  upon  the  bene- 
fits and  advantages  that  will  come  to  all  classes  and  interests, 
and  not  upon  those  that  will  come  to  a  particular  class,  or 
group,  or  section.  Each  party  contends  that  the  welfare  of  the 
whole  Nation  is  best  promoted  and  protected  when  it  is  in  control 
of  all  the  departments  of  government  and  its  policies  are  being 
carried  out.  And  because  each  party  must  stand  for  the  whole 
State,  representing  all  sections  and  all  interests  with  equal 
fidelity,  each  must  take  side  upon  a  large  number  of  questions, 
involving  many  unrelated  subjects.  A  parly  of  a  single  issue 
cannot  be  a  true  national  party,  because  the  interests  of  the 
Nation  are  never  bounded  by  the  limits  of  a  single  problem. 
Back  of  each  party's  position  upon  questions  of  national  policy, 
however,  there  is  a  more  or  less  vague,  indefinite  i)()litical  phi- 
losophy for  which  each  has  come  to  stand.  Each  l)ccomes  tra- 
ditionally associated  with  certain  tendencies,  the  champion  of  a 
few  underlying  principles,  which  are  involved,  sometimes  directly 
and  sometimes  remotely,  in  the  political  controversies  which 
arise.  Thus,  by  way  of  illustration,  the  Democratic  Party, 
which  is  the  only  one  that  has  been  in  existence  during  the  whole 
of  the  Nation's  life,  is  traditionally  the  champion  of  individual 
or  "  personal  "  liberty  and  of  the  rights  of  the  States  against  the 
Nation.     The  Federalist  traditions  concerning  nationalism  and 


THE  PARTY  SYSTEM  1 85 

a  strong  central  government  were  inherited  by  the  Republicans, 
through  the  Whigs. 

As  suggested,  this  theory  of  the  party  system  has  never  been 
put  into  full  practice.  The  parties  have  always  fallen  far  short 
of  what  the  theory  demands.  The  system  in  practice  bristles 
with  imperfections.  The  parties  have  not  always  been  truly 
national ;  indeed,  the  Democratic  party  is  the  only  one  that  may 
be  said  to  have  met  this  requirement.  They  have  not  always 
been  evenly  balanced  and  fully  organized  in  all  localities.  They 
have  not  always  been  actuated  by  a  truly  national  spirit  and 
free  from  the  influence  of  special  interests.  Moreover,  third 
parties  have  sprung  up  from  time  to  time,  and  have  interfered 
seriously  at  times  with  the  normal  working  of  the  party  system. 
Yet  with  all  its  imperfections  and  failures,  and  notwithstanding 
the  obvious  evils  and  difficult  political  problems  to  which  it  has 
given  rise,  the  American  party  system  has  been  a  most  useful 
agency  in  the  development  of  the  American  democracy.  It  has 
been  a  help  and  not  a  hindrance.  Because  of  it  democracy  is 
farther  along  the  path  of  achievement,  free  government  rests 
on  a  more  solid  foundation. ^ 

Beginnings  of  Party  Organization.  —  What  has  been  said  thus 
far  has  had  to  do  in  a  general  way  with  the  political  parties  as 
agencies  of  government.  It  remains  to  treat  in  detail  of  the 
development  and  present  status  of  party  organization,  and 
analyze  and  describe  party  methods,  activities,  and  problems. 
The  parties  are  dependent  upon  their  organization.  The  char- 
acter, success,  and  power  of  a  party  rest  upon  its  organization. 
Party  practices  are  evolved  by  it  and  party  problems  spring 
from  it.  It  is,  therefore,  in  the  organization  and  machinery  of 
the  parties  that  the  greatest  interest  lies  for  any  one  who  wishes 
to  comprehend  clearly  the  real  function  and  service  of  the  party 
system. 

Party  organization  in  the  United  States  is  a  highly  developed, 
complicated  thing.  Like  government  it  has  evolved  from  the 
simple  to  the  complex.  Beginning  with  small,  voluntary,  iso- 
lated poHtical  clubs,  it  has  grown  into  a  huge  political  institution, 
nation-wide  in  its  reach,  with  ramifications  into  every  nook  and 

1  For  a  fuller  discussion  of  the  theor>'  and  nature  of  the  .American  party  system 
and  the  influence  of  third  parties,  see  Macy,  "  Political  Parties  in  the  United 
States,"  Chap.  XII. 


1 86  COMPARATIVE  FREE   GOVERNMENT 

corner  of  the  land  and  essential  to  the  orderly  on-going  of  gov- 
ernmental processes.  Without  their  organizations  the  parties 
would  fall  to  pieces;  and  without  the  parties  the  government 
would  practically  cease  to  operate. 

It  is  difficult,  without  going  into  a  lengthy  historical  disserta- 
tion, to  make  clear  the  real  beginning  of  organized  party  activity. 
The  subject  may  be  approached  from  the  top  or  from  the 
bottom ;  from  the  manifestations  of  party  life  in  national  affairs, 
particularly  as  related  to  the  nomination  of  candidates  for  the 
presidency  and  vice  presidency,  or  from  the  evidences  of  a 
developing  party  spirit  in  the  local  communities  revealed  by  the 
organization  of  voluntary  societies  or  clubs  for  the  propagation 
of  specific  governmental  policies.  The  Congressional  Caucus, 
the  first  device  for  the  selection  of  party  candidates  for  the 
presidency  proved  weak  and  did  not  long  survive,  however,  while 
the  local  organizations  grew  strong  and  possessed  elements  of 
permanent  value.  While  proper  enough,  therefore,  to  begin 
with  a  description  of  the  Congressional  Caucus,  it  is  better  to 
put  the  emphasis  of  first  mention  upon  the  voluntary  local  club. 
It  is,  indeed,  out  of  the  habit  of  association  on  the  part  of  the 
common  people  as  shown  in  these  local  societies  that  the  enduring 
party  organization  has  grown.  The  fact  is  that  this  permanent 
party  organization  grew  from  the  local  community  on  up  to  the 
central  government.  Even  before  the  Revolution  the  local  cau- 
cus was  known  and  its  value  proven.  Hence,  when  the  time 
came  for  real  party  Hfe  and  party  struggles,  the  agency  for 
effective  action  was  at  hand. 

To  Thomas  Jefferson,  skilled  in  the  art  of  political  manage- 
ment, belongs  the  credit  of  first  discerning  clearly  the  value  of  the 
local  association  as  an  instrument  of  party  activity.  When,  as 
Secretary  of  State,  he  found  himself  in  serious  contro\er.sy  with 
the  Washington  administration,  he  ])egan  to  organize  his  fol- 
lowers in  opposition.  An  ardent  advocate  of  individual  liberty 
and  local  self-government,  he  encouraged  the  formation  of  local 
Democratic  Clubs  to  resist  what  he  considered  the  central  gov- 
ernment's encroachments.  This  work  went  quietly  on  until 
the  Jeffersonian  or  Democratic-Republican  party  was  locally 
organized,  to  a  greater  or  less  degree,  in  all  the  States.  The 
afiministration  party,  the  followt  rs  of  Washington  and  Hamilton, 
made  little  effort  to  organize  local  societies  in  support  of  their 


THE   PARTY   SYSTEM  187 

policies.  In  fact,  the  Federalists  never  were  thus  locally  organ- 
ized. They  developed  and  used  the  Congressional  Caucus  at  the 
top,  but  they  apparently  cared  nothing  for  the  local  caucus  at 
the  bottom.  The  result  was  vigor  and  permanency  for  the  party 
of  Jefferson,  which  still  lives  in  the  Democratic  party,  while  the 
Federalist  party  soon  became  extinct.  The  American  pohtical 
party  is  institutional  in  character ;  it  fulfils  local  as  well  as  gen- 
eral needs.  And  it  is  the  local  organizations  of  the  kind  Jef- 
ferson encouraged  which  afford  proof  of  this  and  give  to  the 
parties  enduring  vitality. 

The  Congressional  Caucus.  —  In  its  national  aspect,  party 
organization  has  always  centered  around  the  nomination  and 
election  of  candidates  for  the  presidency  and  vice  presidency. 
Various  nomination  methods  were  used  before  the  well-known 
convention  system  was  established.  A  word  about  these  is 
desirable. 

The  first  agency  set  up  for  the  selection  of  party  candidates 
for  these  high  ofiices  was  the  Congressional  Caucus  to  which 
reference  has  already  been  made.  As  the  name  implies  it  was  an 
institution  that  grew  up  within  the  national  legislature.  It  was 
first  used  as  a  nominating  agency  by  the  Federahsts  in  connection 
with  the  presidential  election  of  1800.  Its  meeting  was  secret 
and  was  attended  only  by  Federalist  members  of  Congress. 
A  candidate  for  the  presidency  and  one  for  the  vice  presidency 
were  nominated  and  the  members  of  the  caucus  were  pledged  to 
try  to  obtain  the  electoral  votes  of  their  respective  States  for  these 
candidates.  News  of  the  caucus  leaked  out,  however,  and  soon 
after  the  Republican  members  of  Congress  held  a  similar  meeting 
in  secret  and  nominated  candidates.  At  the  next  presidential 
election,  in  1804,  the  Congressional  Caucus  again  appeared,  but 
this  time  its  meeting  was  not  secret.  The  Federalists  did  not 
hold  a  caucus  because  of  their  demoralized  condition  as  a  party. 
The  Republicans,  however,  used  it  openly  and  continued  to  use 
it  as  the  regular  method  of  selecting  candidates  until  its  final 
overthrow.     The  last  Caucus  held  was  that  of  1S24. 

To  understand  the  Congressional  Caucus  it  is  necessary  to 
recall  the  constitutional  provision  relating  to  the  choice  of  Presi- 
dent and  Vice  President  as  it  was  before  the  twelfth  amendment 
was  adopted.^    The  presidential  electors,  chosen  by  the  States, 

1  Above,  p.  39. 


1 88  COMPARATIVE   FREE   GO\ERXMENT 

were  to  vote  for  two  persons,  —  the  one  having  the  highest 
number  of  votes,  provided  this  was  a  majority  of  the  whole 
number  of  electors,  to  become  President,  and  the  one  receixing 
the  next  highest  number  to  become  Vice  President.  This  might 
have  been  a  satisfactory  arrangement  if  the  political  parties  had 
not  appeared  on  the  scene.  Each  of  the  parties  was  eager  to 
control  both  offices ;  yet  there  was  no  assurance  that  this  result 
could  be  attained  unless  there  was  agreement  upon  candidates. 
The  majority  party  might  divide  its  vote  among  several  candi- 
dates and  so  throw  away  its  opportunity.  To  prevent  this, 
if  possible,  the  FederaHsts  made  use  of  the  Congressional  Caucus, 
and  the  Republicans,  seeing  the  value  of  the  scheme,  also  took 
it  up.  The  candidates  went  before  the  voters  with  increased 
prestige  because  of  the  caucus  indorsement. 

The  caucus  was  never  popular.  It  was  constantly  under 
suspicion  and,  in  fact,  met  with  decided  opposition  from  the 
beginning.  There  were  several  reasons  for  this.  For  one  thing, 
the  people  did  not  approve  of  the  secrecy  that  surrounded  its 
meetings.  It  appeared  to  be  an  attempt  on  the  part  of  a  few 
leaders  to  gain  control  of  the  new  government,  possibly  to  sub- 
vert it.  Again,  the  Caucus  was  clearly  in  violation  of  the  spirit 
and  purpose  of  the  Constitution.  The  presidency  was  not 
to  be  a  prize  for  party  contests.  To  accept  the  Caucus  plan  was, 
in  substance,  simply  to  set  aside  the  constitutional  method  of 
choosing  the  President.  Furthermore,  and  perhaps  most  im- 
portant of  all,  the  Caucus  endangered  the  independent  relation- 
ship between  the  legislative  and  executive  departments.  On  the 
one  hand  it  threatened  the  subjection  of  the  President  to  Con- 
gress which  might  give  its  indorsement  to  a  subservient  weakling, 
and  on  the  other,  the  submission  of  Congress  to  a  powerful  Presi- 
dent who  might  curry  favor  with  its  members  and  either  per- 
petuate himself  in  oflice  or  dictate  his  successor.  Either  was 
dangerous  and  subversive  of  the  Constitution.  The  separation 
of  the  departments  was  a  safeguard  of  the  people's  liberties  and 
was  to  be  scrupulously  maintained.  For  these  and  other  reasons, 
the  Caucus  became  an  object  of  increasingly  bitter  opjwsition 
until  its  abandonment  was  forced  upon  Congress. 

Yet,  beyond  question,  the  Caucus  served  a  highly  useful 
purpose.  It  furnished  leadership  for  the  parties  at  a  time  when 
cai)ablc  leadership  was  of  vast  importance.     At  that  lime  modern 


THE  PARTY   SYSTEM  1 89 

means  of  communication  and  transmission  of  intelligence  were 
entirely  lacking.  It  was  difficult  for  the  people  throughout  the 
States  to  keep  in  touch  with  national  affairs.  Under  the  cir- 
cumstances the  natural  leaders  were  those  who  were  at  the 
national  capital  in  charge  of  the  government.  Members  of 
Congress  understood  both  the  needs  and  problems  of  the  Nation 
and  the  desires  and  demands  of  their  constituents.  No  other 
group  of  citizens  was  in  a  position  to  render  so  large  a  service  in 
the  way  of  crystallizing  party  sentiment  in  support  of  party 
policies  and  candidates.  Through  the  Caucus,  members  of 
Congress  exerted  a  powerful  unifying  influence,  and  in  this  way 
did  a  necessary  work.  The  consciousness  of  party  life  was  not 
keen,  at  first,  and  not  generally  diffused.  The  Congressional 
Caucus,  therefore,  was  an  agency  that  was  suited  to  the  time  in 
which  it  originated.  Within  Congress,  party  lines  were  sharply 
drawn ;  without,  they  were  not.  It  was  natural,  therefore,  for 
its  members  to  seek  to  direct  their  respective  parties  in  the  selec- 
tion of  candidates  as  well  as  in  the  formulation  of  policies. 
Moreover,  the  Caucus  tended  to  establish  that  cooperation 
between  the  legislative  and  executive  departments  which  expe- 
rience has  shown  to  be  so  essential.  It  was  a  step,  the  first  step, 
toward  party  solidarity  and  party  responsibility  for  the  conduct 
of  the  national  government.  Valuable  as  it  was,  however,  for 
the  time  being,  the  Congressional  Caucus  was  not  suitable  as  a 
permanent  system  of  nominating  presidential  candidates  and 
soon  outlived  its  usefulness. 

REFERENCES 

Beard.     American  Government  and  Politics,  Edition  1914,  Chap.  VI. 
Ford.     The  Rise  and  Groidh  of  A  merican  Politics,  Chaps.  VII,  XII,  XXIII, 

XXIV,  XXV. 
GoODNOW.     Politics  and  Admiuislraliou,  Chaps.  VII,  VIII,  IX. 
Jones.     Readings  on  Parties  and  Elections,  pp.  28-46. 
Macy.     Party  Organization  and  Machinery,  Chaps.  I,  II,  XXII,  XXIII. 
Macy.     Political  Parties  in  the  United  States,  Chaps.  I,  II,  XII. 
Meyer.     Nominating  Systems,  Chap.  I. 

OsTROGORSKi.     Democracy  and  the  Party  System  in  the  United  States,  Chap.  I. 
Smith.     The  Spirit  of  American  Government,  Chap.  VIII. 
Wilson.     Constitutional  Government  in  the  United  States,  Chap.  VIII. 
WoODBURN.     Political  Parties  and  Party  Problems  in  the   United  States, 

Chaps.  I,  II. 


CHAPTER  XV 
The  National  Convention 

The  passing  of  the  nominating  caucus  left  the  parties  without  a 
regular,  official  way  of  selecting  candidates.  A  period  of  con- 
fusion in  party  organization  ensued.  No  systematic  procedure 
was  observed.  Miscellaneous  methods  of  making  nominations 
were  everywhere  used.  Sometimes  presidential  candidates 
were  brought  forward  by  State  legislatures,  acting  formally  and 
officially.  Sometimes  nominations  were  made  by  caucuses  in 
the  State  legislatures,  acting  in  a  spirit  and  manner  similar  to 
those  of  the  old  Congressional  Caucus.  Again,  candidates  were 
placed  in  nomination  by  local  and  State  conventions,  by  mass 
meetings,  by  newspapers,  by  individuals.'  One  or  all  of  these 
methods,  indeed,  might  be  employed  in  a  single  State.  The 
period  between  the  decline  of  the  Congressional  Caucus  and  the 
estabUshment  of  the  convention  system  was  one  of  transition 
and  the  nomination  processes  were  informal,  unauthoritative, 
and  inconclusive.  There  was  a  spirit  of  revolt  against  dictation 
by  party  leaders  and  a  demand  for  a  thorough  democratization 
of  party  organization.  The  ultimate  outcome  was  the  nominat- 
ing convention  which  has  played  so  big  and  vital  a  part  in  .'\mcri- 
can  politics.  This  from  the  beginning  was  fundamentally 
different  from  the  nominating  caucus,  which  was  an  unauthor- 
ized body.  The  convention  was  made  the  authorized  agent  of 
the  i)arty  and  received  its  power  from  the  members  of  the  party 
acting  tlirough  their  local  organizations.  The  rise  of  the  con- 
vention, in  fact,  is  one  of  the  evidences  of  the  rising  tide  of  democ- 
racy which  characterize  the  "  Jacksonian  period  "  of  American 
history. 

The  first  national  party  convention  was  held  in  1831  by  the 
Anti-Masons,  a  third  party.  This  was  a  new  thing  in  national 
politics,  but  the  convention  as  a  nominating  agency  had  already 
been  used  in  the  Slates.     In  1832  both  of  the  leading  parlies,  the 

'  Uallingcr.  "  Nominations  for  Elective  OfTico,"  p.  29. 
I  go 


THE   NATIONAL  CONVENTION  191 

National  Republicans  and  the  Democrats,  called  conventions. 
From  that  time  until  the  present,  with  the  single  exception  of 
the  Whigs  in  1836,  the  candidates  of  all  parties  for  the  presidency 
and  vice  presidency  have  been  nominated  by  conventions.  The 
convention  system,  therefore,  has  been  in  use  during  the  greater 
part  of  the  Nation's  history,  and  until  very  recent  days  remained 
essentially  what  it  was  in  the  beginning,  although  necessarily  it 
has  been  modified  somewhat  to  meet  the  needs  of  party  growth. 
What  the  future  has  in  store  for  it,  future  events  must  reveal. 
It  has  been  an  institution  of  such  vital  significance  and  interest 
and  has  influenced  so  profoundly  the  development  of  American 
democracy,  that  further  treatment  of  it  is  necessary.  It  is  the 
apex  of  a  huge  system  of  party  machinery  which  involves  all 
the  States  of  the  Union  and  all  their  multitudinous  poUtical  sub- 
divisions. In  no  other  country  of  the  world  is  there  anything 
like  the  American  national  convention.^ 

The  Convention's  Functions  and  Composition.  —  The  func- 
tions of  the  convention  are  threefold.  First,  to  formulate  and 
officially  adopt  for  each  presidential  election  the  party  platform, 
the  principles  and  policies  for  \vhich  the  party  stands ;  second,  to 
nominate  its  candidates  for  the  presidency  and  the  vice  presi- 
dency; and,  third,  to  choose  a  National  Committee  which  will 
direct  the  campaign  for  the  election  of  the  party  ticket  and  take 
the  necessary  steps  for  calling  the  next  convention.  The  con- 
vention is  the  supreme  party  authority,  and  in  discharging  these 
functions,  its  action  is,  in  theory,  the  action  of  the  party  itself. 
It  is  the  party's  legislature  to  which  has  been  delegated  the 
supreme  power  of  determining  party  policies  and  choosing  the 
highest  party  officers.  Inasmuch  as  the  candidate  of  the  success- 
ful party  becomes  President,  and  the  policies  of  that  party  may 
be  embodied  in  the  law  of  the  land,  these  functions  of  the  national 
convention  are  of  transcendent  importance.  Yet  its  work  is  by 
no  means  always  done  with  wisdom  and  scrupulous  regard  for 
the  Nation's  best  interests.  It  is  usually,  in  fact,  the  scene  of 
astute,  if  not  astounding,  political  manipulation.  Nowhere 
else  has  the  "  game  of  politics  "  been  played  more  zealously  and, 
at  times,  more  recklessly. 

The  national  convention  is  composed  of  delegates  representing 
the  States  and  Territories,  and  is  governed  by  rules  of  its  own 

'  Rclovv,  p.  498. 


192  COMPARATIVE   FREE   GOVERNMENT 

making.  The  practices  of  the  leading  parties  have  differed 
somewhat  with  respect  to  the  manner  of  choosing  delegates  and 
the  representation  of  the  Territories.  By  a  long-standing  rule 
each  State  is  entitled  to  twice  as  many  delegates  as  it  has 
Senators  and  Representatives  in  Congress.  Each  Territory  and 
dependency  and  the  District  of  Columbia  are  given  representa- 
tion as  provided  for  in  the  rules  under  which  the  convention  has 
been  called.  Thus  in  the  Democratic  convention  of  igiaeach 
of  these  had  six  delegates,  while  in  the  Republican  convention 
of  that  year  there  were  six  delegates  from  Hawaii  and  two  each 
from  the  District  of  Columbia,  Alaska,  Porto  Rico,  and  the  Phil- 
ippines. The  total  number  of  Democratic  delegates  was  1094 
and  of  Republican  delegates  1078.  In  addition  to  the  regular 
delegates  there  is  an  equal  number  of  alternates  who  do  not  partic- 
ipate in  the  proceedings  of  the  convention  except  in  the  absence 
of  regular  delegates.  It  is  seen  that  the  convention  is  a  large 
body,  entirely  too  large  for  a  deliberative  asseml)ly.  It  should 
be  stated,  however,  that  though  there  is  abundant  need,  the  con- 
ventions as  such  seldom  deliberate.  That  function  is  usually 
attended  to  by  the  convention's  leaders  and  managers  in  secret 
conferences  held  whenever  and  wherever  occasion  demands. 

Selection  of  Delegates.  —  Reference  was  just  made  to  the 
fact  that  the  Democratic  and  Republican  practices  differ  some- 
what in  the  manner  of  choosing  delegates.  The  method  to  be 
pursued  by  the  Republicans  is  always  stated  in  the  official  call 
for  the  convention  issued  by  the  National  Committee.  With  the 
Democrats  this  is  left  to  the  States  and  Territories  to  decide  for 
themselves.  The  Republican  practice  is  to  hold  a  convention 
in  each  State,  for  the  purpose  of  choosing  the  four  delcgates-at- 
large,  and  their  alternates,  who  correspond  to  the  United  States 
Senators,  and  a  district  convention  in  each  congressional  dis- 
trict to  choose  the  two  delegates  and  their  alternates,  who  cor- 
respond to  the  Representative  of  the  district  in  the  lower  house  of 
Congress.  Where  direct  primary  laws  have  been  made  to  apply 
to  convention  delegates,  the  selection  is  made  by  the  members  of 
the  party  at  the  polls,  and  conventions  are  not  held.  The  con- 
gressional district  has  long  been  recognized  by  the  Republicans 
as  the  unit  of  representation.  The  territorial  delegates  are 
chosen  at  Cf)nventions.  This  same  general  practice  is  now  ob- 
served Jjy  the  democratic  party,  though  not  in  all  of  the  State:  , 


THE  NATIONAL   CONVENTION  1 93 

The  Democrats  are  traditionally  the  champions  of  the  States 
as  against  any  other  political  authority,  and  formerly  assigned 
to  the  State  convention  the  task  of  selecting  the  entire  delegation 
to  the  national  convention.  This  is  still  done  in  a  number  of  the 
States.  A  common  practice  with  the  Democrats  is  for  the  entire 
State  convention  to  choose  the  delegates-at-large,  just  as  the 
RepubUcan  conventions  do,  and  for  the  delegation  to  the  State 
convention  from  each  congressional  district  to  name  the  national 
delegates  to  which  the  district  is  entitled.  This  selection  by  the 
district  delegations  is  then  ratified  by  the  State  convention. 
In  this  way  the  congressional- districts  are  recognized  and  at  the 
same  time  the  character  of  State  delegations  is  maintained. 
This  makes  it  possible  for  the  State  convention  to  instruct  the 
entire  delegation  to  the  national  convention,  —  a  practice  com- 
mon with  the  Democrats  and  entirely  in  harmony  with  Demo- 
cratic traditions  which  look  to  the  State  as  the  important  unit 
in  party  action.^  These  instructions  may  be  made  under  the 
unit  rule,  recognized  by  the  Democrats,  by  which  the  entire 
vote  of  a  State  delegation  in  the  national  convention  is  cast 
according  to  the  wishes  of  a  majority  of  its  members ;  the  indi- 
vidual delegate  cannot  vote  as  he  pleases,  but  must  vote  as  the 
majority  of  the  delegation  direct.  The  Repubhcan  State  con- 
ventions have  no  authority  to  impose  the  unit  rule  and  may  give 
instructions  only  to  the  delegates-at-large  chosen  by  them.  The 
district  delegates  receive  their  whole  authority  from  their  respec- 
tive district  conventions  and  are  subject  to  instructions  only 
from  them.  In  either  party,  when  no  instructions  are  given,  each 
delegate  is  free  to  act  as  he  pleases. 

This,  in  a  few  words,  is  a  statement  of  the  convention  method 
of  choosing  the  national  delegates,  —  a  method  that  has  been  in 
use  from  the  very  beginning.  It  is  based  wholly  on  the  represent- 
ative principle  and  has  been  accepted  by  all  parties.  In  times 
past  it  has  been  the  only  method  of  choosing  the  delegates,  but 
that  is  not  true  to-day.  To  a  marked  degree  the  representative 
principle  as  applied  to  party  activities  has  been  pushed  aside  in 
recent  years  and  that  of  direct  action  by  party  members  has 
been  substituted  for  it.  To  a  large  extent  the  convention  method 
of  nominating  candidates  for  public  office  has  been  supplanted 
by  the  direct  primary,  under  which  the  nominations  are  made 

1  Woodbum,  "  Political  Parties  and  Party  Problems  in  the  United  States,"  p.  158. 


194  COMPARATIVE   FREE   GOVERNMENT 

directly  by  the  members  of  the  party,  without  the  aid  of  inter- 
mediary bodies  of  any  kind.  Practically  all  the  States  have 
adopted  the  direct  primary  in  one  form  or  another.  In  a  number 
of  them  it  has  been  made  to  include  the  selection  of  delegates 
to  the  national  convention.  The  primary  plan  has  proven  very 
popular  and  it  may  be  assumed  with  some  assurance,  it  would 
seem,  that,  if  the  convention  system  of  nominating  presidential 
candidates  is  retained,  all  delegates  to  the  conventions,  in  time, 
will  be  chosen  directly  by  the  party  voters,  and  be  instructed  by 
them  as  to  their  preferences  with  respect  to  presidential  candi- 
dates. In  a  number  of  States  this  is  now  done.  The  question 
of  whether  the  convention  system  of  nomination  will  be  retained 
is  problematical,  however.  In  the  last  few  years  an  insistent, 
nation-wide  demand  has  arisen  for  the  nomination  of  candidates 
for  the  presidency  and  the  vice-presidency  at  direct  primaries. 
The  enactment  of  a  national  law  by  Congress  to  provide  for 
this  seems  probable.  It  has  already  been  recommended  to 
Congress  by  President  Wilson.  If  a  law  of  this  kind  is  not 
enacted,  the  result  will  be  attained  substantially  through  presi- 
dential preference  primaries  estabhshed  by  State  authority. 

It  is  proper  to  note  here  that  for  some  years  fundamental 
readjustments  have  been  taking  place  in  party  life.  Under  the 
powerful  pressure  of  an  aroused  democracy,  with  clearer  concep- 
tions of  its  privileges  and  its  obligations,  old  issues  and  methods 
and  forms  are  giving  way,  wholly  or  in  part,  to  new  ones.  What 
the  ultimate  outcome  will  be,  no  one  can  tell.  It  is  certain,  how- 
ever, that  the  national  convention,  if  retained  at  all,  will  be  radi- 
cally diiTerent  from  what  it  has  been  for  three  quarters  of  a 
century. 

Convention  Organization  and  Procedure.  —  The  manner  in 
which  the  national  convcnlion  assembles,  organizes,  and  does 
its  work  is  full  of  interest  and  deserves  some  attention.  All 
arrangements  for  the  convention  are  made  by  the  National 
Committee,  which  at  the  pr()i)er  time  sets  the  whole  intricate 
system  of  party  machinery  in  motion  in  preparation  for  this  great 
quadrennial  party  assembly.  Some  six  months  before  the 
accustomed  time  for  the  convention,  which  usually  is  held  in 
the  June  or  July  preceding  the  presidential  election,  the  National 
Committee  issues  the  oilicial  call.  Although  there  is  always 
more  or  less  activity  I)cfore  this  in  connection  with  the  approach- 


THE   NATIONAL   CON\'ENTION  195 

ing  election,  particularly  among  the  candidates  for  the  party 
nomination,  the  call  represents  the  real  beginning  of  the  party's 
campaign.  The  Democratic  call  is  much  briefer  than  the 
Republican,  It  states  the  time  and  place  of  holding  the  con- 
vention, the  number  of  delegates  to  which  each  State,  Territory, 
and  dependency  is  entitled,  and  invites,  in  general  terms,  those 
who  are  in  sympathy  with  the  party's  principles  to  participate 
in  the  selection  of  delegates.  The  Republican  call  not  only 
provides  for  these  points,  but  also  specifies  the  manner  and  time 
in  which  the  delegates  are  to  be  chosen  and  their  credentials 
sent  to  the  secretary  of  the  National  Committee.  It  also  states 
what  must  be  done  in  case  there  are  contesting  delegations  from 
any  State  or  district. ^  A  copy  of  the  call  is  sent  to  each  of  the 
State  central  committees  which,  in  turn,  prepare  and  issue  the 
summons  for  the  necessary  State  and  district  conventions.  The 
process  of  choosing  the  delegates  then  begins. 

When  the  convention  assembles  it  is  under  the  direction  of  the 
National  Committee,  which,  through  its  subcommittees,  has 
made  detailed  arrangements.  A  large  hall  is  provided  and  pro- 
fusely decorated,  ofificers  and  their  assistants  are  appointed,  the 
seating  of  the  State  delegations  arranged  for,  and  everything 
done  that  can  be  done  to  make  the  convention  pass  off  smoothly 
and  expeditiously. 

At  the  time  designated  the  convention  is  called  to  order  by  the 
chairman  of  the  National  Committee.  After  a  prayer,  with 
which  the  proceedings  are  always  opened,  the  official  call  for  the 
convention  is  read.  Then  the  chairman  announces  the  name  of 
the  man  whom  the  committee  has  selected  for  temporary  chair- 
man of  the  convention  and  also  the  other  temporary  officers. 
The  committee's  choice  for  chairman  is  usually  approved  by  the 
convention  without  division,  although  sometimes  opposition 
has  arisen  and  occasionally  the  committee's  nomination  has  been 
rejected.  After  his  election  by  the  convention  the  temporary 
chairman  proceeds  to  deliver  a  carefully  prepared  speech,  — 
a  "  key  note  "  speech,  as  it  is  called,  —  the  purpose  of  which 
is  to  arouse  enthusiasm  and  to  help  keep  the  party  harmonious 
and  in  condition  for  the  coming  struggle.  At  the  close  of  this 
address,  the  convention,  upon  motion  made  and  carried,  pro- 

'  Ray,  "An  Introduction  to  Political  Parties  and  Practical  Politics,"  p.  146  ; 
Jones,  "  Readings  on  Parlies  and  Elections,"  p.  86. 


196        COMPARATIVE  FREE  GOVERNMENT 

ceeds  to  appoint  its  committees.  There  are  four  of  these,  — 
the  committees  on  credentials,  permanent  organization,  rules 
and  order  of  business,  and  resolutions.  The  appointment  is 
made  in  this  manner.  The  roll  of  the  States  is  called  in  alpha- 
betical order,  and  in  turn  the  chairmen  of  the  delegations  either 
arise  and  announce  the  names  of  the  members  chosen  by  the 
delegations  to  represent  them  upon  the  committees,  or  send  the 
names  to  the  secretary  who  reads  them  to  the  convention.  Each 
State  has  one  representative  on  each  committee.  With  the  nam- 
ing of  the  committees  the  first  session  of  the  convention  normally 
comes  to  a  close,  and  adjournment  is  taken  to  await  the  reports 
of  the  committees  which  begin  their  labors  at  once. 

The  first  report  due  in  the  regular  order  is  that  of  the  com- 
mittee on  credentials,  whose  duty  it  is  to  determine  those  who 
have  right  to  seats  in  the  convention  and  make  up  the  perma- 
nent roll.  The  temporary  roll  has  been  made  prior  to  the 
meeting  of  the  convention  by  the  National  Committee.  Some- 
times there  are  few  and  sometimes  there  are  many  contesting 
delegations.  The  National  Committee  must  pass  upon  the 
claims  of  each  and  decide  the  question  as  to  who  shall  take 
part  in  the  preliminary  proceedings  of  the  convention.  This  is 
at  times  a  very  difficult  task  and  in  connection  with  it  sometimes 
serious  abuses  have  arisen.  Delegations  claiming  scats  and  dis- 
satisfied with  the  decision  of  the  National  Committee  may  take 
the  matter  before  the  credentials  committee  and  seek  recogni- 
tion of  their  claims,  for  the  work  of  the  National  Committee 
cannot  stand  as  conclusive.  The  convention  itself  must  deter- 
mine its  own  membership,  and  it  does  this  largely  through  its 
committee  on  credentials.  It  may  be  that  there  are  no  contests 
at  all.  In  that  case  the  committee  reports  at  once  when  the 
convention  assembles  for  its  second  session,  and  its  report  is 
speedily  adopted.  It  may  be,  on  the  other  hand,  that  there  are 
.serious  contests  which  are  difficult  of  solution.  In  that  case, 
many  hours,  perhaps  even  several  days,  may  be  recjuired  for  the 
committee  to  go  over  the  evidence  and  formulaic  its  report. 
The  convention  cannot  go  on  with  imi)ortant  work,  however, 
until  it  has  decided  who  have  the  right  to  i)articipate  in  its 
I)rocecdings.  When  the  commit  lee  finally  reports,  the  conven- 
tion must  take  action  ui)on  its  findings.  A  unanimous  re[)ort  is 
almost  certain   to  be  approved.      If  the  committee  is  divided. 


THE   NATIONAL   CONVENTION  1 97 

usually  the  majority  report  is  accepted,  although  sometimes  the 
minority  report  is  substituted  for  it. 

After  the  credentials  of  its  members  have  been  passed  upon 
and  approved,  the  convention  is  ready  to  effect  a  permanent 
organization.  The  committee  reports  the  names  of  a  permanent 
chairman,  the  secretaries  and  vice  presidents.  Usually  there  is 
no  opposition  to  the  committee's  recommendations  and  its 
report  is  promptly  approved.  The  permanent  chairman  takes 
his  place,  makes  a  brief  address,  and  calls  for  the  report  of  the 
committee  on  rules  and  order  of  business.  Ordinarily  there  is 
no  controversy  over  the  rules,  those  of  the  preceding  convention 
being  adopted  without  opposition.  Now  and  then,  however, 
spectacular  convention  fights  occur  over  this  question,  as  was 
the  case  in  the  Republican  convention  of  191 2.  With  the 
adoption  of  the  rules  which  are  to  govern  the  proceedings,  the 
convention  is  fully  organized  and  ready  for  the  work  for  which  it 
assembled.  All  that  is  done  up  to  this  point  is  merely  prelimi- 
nary in  character,  and  yet  it  may  be  of  the  profoundest  signifi- 
cance because  the  real  nature  of  the  platform  and  the  actual 
choice  of  the  presidential  candidate  may  have  been  determined 
in  making  up  the  convention's  permanent  roll. 

The  next  order  of  business  is  the  report  of  the  committee  on 
resolutions,  whose  duty  it  is  to  frame  the  party  platform.  "  The 
platform  is  an  address  to  the  people,  consisting  sometimes  of 
various  '  planks,'  or  a  series  of  resolutions,  sometimes  of  an 
address  without  division  into  numbered  sections,  containing  the 
principles  and  program  of  the  party.  It  arraigns  the  opposing 
party  for  its  errors,  criticises  it  for  its  course,  joins  issue  with  it 
on  prominent  policies  before  the  public,  and  gives  promise  as 
to  what  the  party  will  do  if  it  is  elected  to  or  retained  in  power. 
In  the  platform  the  managers  usually  try  to  conciliate  every 
section  of  conflicting  party  opinion,  and  they  frequently  produce 
a  document  which  treats  with  '  prudent  ambiguity  '  the  ques- 
tions on  which  there  is  division  within  the  party."  ^  The 
adoption  of  the  platform  may  be  the  occasion  of  a  bitter  struggle 
in  the  open  convention  between  party  factions  which  are  fighting 
for  ascendancy,  as  was  the  case  in  the  famous  Democratic  "  free 
silver  "  convention  of  1896.  On  the  other  hand,  it  may  be 
adopted   without  division.     Unfailingly,   however,   sharp  con- 

*  Woodburn,  '-'Political  Parties  and  Party  Problems  in  the  United  States,"  p.  t8i. 


198  COMPARATIVE   FREE   GOVERNMENT 

troversies  occur  in  the  committee  on  resolutions  over  what  shall 
be  included  in  the  platform.  Many  of  these  are  settled  by  com- 
promise or  in  other  ways,  so  as  to  enable  the  committee  to  bring 
in  a  unanimous  report,  but  sometimes  the  issue  is  so  acute  that 
agreement  is  impossible,  and  majority  and  minority  reports  are 
made  to  the  convention  where  the  controversy  is  finally  settled. 

Nomination  of  Candidates.  —  Following  the  adoption  of  the 
platform,  the  next  order  of  business  is  the  selection  of  the  party's 
nominee  for  the  presidency.  This  is  the  big  event  of  the  con- 
vention, the  thing  to  which  the  delegates  have  been  looking 
eagerly  forward  and  upon  which  the  attention  of  the  whole 
Nation  is  centered.  It  is  always  a  moment  of  intense  interest 
when  the  convention  takes  up  the  task  of  nominating  its  candi- 
date. It  usually  marks  the  culmination  of  a  long  period  of 
excitement  and  suspense,  during  which  the  claims  of  rival  aspir- 
ants for  the  nomination  have  been  before  the  country,  and  the 
delegates  to  the  convention  have  been  selected.  It  may  be  that 
the  contest  is  exceedingly  close  between  two  candidates  and  the 
outcome  will  depend  upon  the  votes  of  a  few  uninstructed  dele- 
gates. It  may  be,  again,  that  there  are  several  candidates, 
evenly  balanced  in  strength,  and  a  long  deadlock  is  in  prospect. 
The  nomination  may  be  made  on  the  first  ballot,  or  the  second, 
or  the  third ;  and  then  again,  it  may  not  be  made  until  the 
twentieth,  or  the  thirtieth,  or  the  fortieth.  It  depends  upon  a 
number  of  things,  —  the  availability  and  strength  of  the  candi- 
dates, the  skill  of  their  managers,  the  fidelity  of  delegates  to 
their  instructions,  the  temper  of  the  convention,  the  state  of  the 
public  mind.  The  prize  at  stake  is  leadership  of  the  party  for 
the  time  being  and  perhaps  the  attainment  of  the  highest  office 
and  greatest  honor  possible  to  an  American  citizen.  The  intense 
interest  of  the  convention  and  of  the  Nation  as  a  whole  is  fully 
warranted. 

The  formal  nomination  procedure  is  simple.  The  roll  of  the 
States  is  called  in  ali)hai)etical  order  and  each  is  given  a  chance 
to  name  a  candidate.  One  near  the  head  of  the  roll  which  has 
no  candidate  of  its  own,  but  favors  the  candidate  of  another 
which  comes  farther  down  in  the  list,  may  yield  to  the  latter, 
in  orrler  that  its  favorite  may  be  placed  in  nomination  early 
in  the  proceedings.  A  candidate  from  one  State  may  be  |)laced 
in  nomination  by  anollier  State.     This  is  frequently  done  for 


THE  NATIONAL  CONVENTION  199 

the  sake  of  the  influence  it  may  have  upon  delegates  who  may 
be  wavering  or  in  doubt  as  to  what  they  should  do.  The 
nominations  are  accompanied  by  speeches  which  have  been 
carefully  prepared  and  which  are  characterized  by  fervid,  white- 
hot  oratory,  and  sometimes  by  genuine  eloquence.  These  are 
the  occasions  for  wild  and  stormy  demonstrations  for  the  rival 
candidates.  As  the  calling  of  the  roll  proceeds,  speeches  second- 
ing the  various  nominations  are  made.  These  are  shorter  than 
the  main  speeches,  but  vie  with  them  in  eulogistic  oratory. 

After  the  speech-making  is  concluded,  balloting  upon  the 
names  presented  begins  at  once.  The  roll  of  the  States  is  called 
again  and  the  chairman  of  each  delegation  in  turn  announces 
its  vote.  If  no  candidate  has  the  necessary  number  of  votes 
at  the  conclusion  of  the  first  ballot,  another  ballot  is  ordered 
and  the  roll  is  called  again  just  as  before.  This  continues  until 
some  candidate  receives  the  necessary  majority.  If  a  large 
number  of  ballots  is  required,  the  convention  may  adjourn  from 
time  to  time  to  give  opportunity  for  rest  and  for  conferences 
among  the  leaders.  These  intermissions  are  periods  of  manip- 
ulation, intrigue,  and  feverish  excitement.  At  last,  perhaps 
as  the  result  of  deals  and  combinations,  some  candidate  receives 
the  required  vote  and  is  declared  nominated.  With  respect 
to  the  vote  required  the  leading  parties  differ.  The  Republi- 
cans nominate  by  a  simple  majority,  while  the  Democrats  re- 
quire a  two-thirds  vote.  This  "  two-thirds  rule "  and  the 
"  unit  rule,"  to  which  reference  has  been  previously  made,  are 
the  two  important  points  of  difference  between  the  practices 
of  the  two  parties. 

The  naming  of  the  party's  candidate  for  the  vice  presidency 
is  the  convention's  next  work.  The  same  procedure  is  observed 
as  for  the  nomination  of  the  presidential  candidate.  The  in- 
terest in  the  vice  presidential  nomination  is  usually  slight, 
and  the  convention's  proceeding  is  perfunctory.  Occasionally, 
however,  it  is  the  real  center  of  interest,  as  was  the  case  with 
the  Republican  convention  of  1900  which  nominated  Theodore 
Roosevelt  for  the  vice  presidency  and  renominated  William 
McKinley  for  the  presidency  by  acclamation. 

There  remains  to  the  convention  the  appointment  of  the 
National  Committee,  to  be  described  in  the  next  chapter,  and 
two  special  committees  to  notifv  ofhciallv  the  candidates  of 


200  CO^MPARATTVE   FREE   GOVERNMENT 

their  nomination,  a  ceremony  that  takes  place  some  weeks  later 
and  at  which  the  candidates  make  elaborate  speeches  of  ac- 
ceptance.    The  convention  then  adjourns  sine  die. 

Controlling  Forces  and  Environment.  —  It  should  be  clearly 
understood  that  what  has  been  said  in  this  brief  sketch  of  the 
national  convention  has  to  do  almost  entirely  with  its  formal 
structure  and  routine  procedure.  And  this  by  no  means  is  always 
the  most  important.  By  itself  it  is  insufficient ;  for  the  national 
convention,  like  the  government  itself,  cannot  be  understood 
from  a  mere  study  of  its  structure  and  outward  appearance. 
Back  of  these  Ue  the  informal,  unauthorized  processes  of  practi- 
cal politics;  the  play  of  all  those  hidden  forces,  —  personal, 
factional,  economic,  social,  —  which  control  the  affairs  of  men 
and  nations  and  which  converge  and  clash  with  one  another 
under  cover  of  the  convention's  formal  procedure.  The  out- 
ward action  may  be,  very  likely  is,  the  result  of  secret  manipula- 
tion and  bargains.  What  takes  place  behind  the  scenes  may 
be,  very  probably  is,  much  more  significant  than  that  which 
takes  place  on  the  stage  in  front.  It  is  therefore  supremely 
essential  in  trying  to  comprehend  the  full  significance  of  the 
national  convention,  that  judgment  of  what  was  done  be  tem- 
pered with  knowledge  of  why  it  was  done;  that  the  work  of 
the  open  session  be  studied  in  relation  to  the  unrevealed  actions 
of  the  secret  caucuses  and  other  midnight  gatherings  which  seek 
to  control  the  convention's  proceedings.  Only  in  this  way 
can  a  perverted  view  of  what  the  convention  is  be  avoided. 

Moreover,  the  work  of  the  convention  must  be  considered 
in  the  light  of  its  surroundings,  of  its  environment.  The  huge 
convention  hall,  seating  ten  or  twelve  thousand  spectators, 
crowded  to  the  limits  with  the  adherents  of  the  aspiring  candi- 
dates;  the  terrific  noise;  the  loudly  playing  bands;  the  tre- 
mendous enthusiasm,  genuine  and  otherwise;  the  fervid  ora- 
tory ;  the  processions  ;  the  songs ;  the  banners  ;  the  vociferous 
and  long  demonstrations;  the  cheering;  the  stamping  of  feet; 
the  waving  of  flags;  ilic  (arcfully  and  slnrwdly  i)lanne(l 
appeals  to  partisan  si)irit ;  all  these  are  parts  of  the  national 
convention  and  give  it  character.  Their  inlliunce  ui)on  its 
actions  cannot  be  ignored.  All  the  elements  in  the  jjicture 
must  be  observed  and  understood  if  the  right  i)erspective  is  to 
l)c  obtained.      It  is  not  possible  to  elaborate  them  here,  through 


THE   NATIONAL   CONVENTION  20I 

want  of  space ;  only  a  warning  can  be  given  that  they  be  not 
overlooked.' 

The  Convention  in  Theory  and  Practice.  —  In  theory  the 
convention  is  a  most  admirable  institution.  It  is  built  wholly 
on  the  principle  of  representation.  It  stands  for  the  millions 
of  party  members,  owes  its  authority  to  them,  and  assembles 
to  carry  out  their  will  in  the  formulation  of  a  platform  and  the 
selection  of  candidates.  It  is  the  only  body  that  can  speak 
authoritatively  for  the  whole  party.  It  is  composed  of  dele- 
gates chosen  at  State  and  district  conventions,  and  these  are 
made  up  of  delegates  elected  at  county  conventions,  held  in 
each  county  of  the  State  or  district.  The  county  conventions 
are  composed  of  delegates  from  the  various  townships,  and 
wards  —  or  other  election  units  —  into  which  each  county 
is  divided.  And  the  township  and  ward  delegates  are  chosen 
at  township  and  ward  caucuses,  which  are  primary  assemblies, 
composed  in  theory  of  the  entire  party  membership  within 
them.  So  the  authority  of  the  national  convention  is  clearly 
derived  from  the  party  voters.  The  convention  represents  all 
interests  and  all  factions  within  the  party.  Its  sole  purpose  is 
to  give  expression  to  the  party  will.  It  is,  in  short,  a  theoreti- 
cally perfect  representative  body.  "  It  passes  the  highest 
test  of  a  political  institution  in  a  democratic  community.  It 
admits  of  the  purest  application  of  the  principle  of  representation 
or  delegated  authority.  Step  by  step  the  voice  of  each  indi- 
vidual voter  can,  in  theory,  be  transmitted  from  delegate  to 
delegate,  until  finally  it  finds  its  perfect  expression  in  the  legis- 
lature, the  executive,  or  the  judiciary."  ^ 

That  the  convention  system  has  been  of  very  great  value  to 
the  parties  and  at  times  has  rendered  high  service  to  the  Nation 
cannot  be  questioned.  It  has  been  a  tremendously  powerful 
unifying  force.  In  the  party  convention  all  phases  of  the  party's 
problems  are  considered.  One  of  its  chief  functions  is  the 
conciliation  of  antagonistic  elements  within  the  party  and  the 
harmonizing  of  opposing  forces.  "  The  convention  thus,  in 
theory,  lies  at  the  foundation  of  party  success.     It   perfects 

'  For  brief  though  excellent  descriptions  of  the  national  convention,  see  Brjxe, 
"The  American  Commonwealth,"  Chap.  LXX,  Vol.  II,  p.  i86.  New  and  Revised 
Edition;  Ostrogorski,  "Democracy  and  the  Party  System,"  Chap.  VIII,  p.  133; 
Jones,  "  Readings  on  Parties  and  Elections,"  pp.  80-106. 

2  Meyer,  "Nominating  Systems,"  p.  4q. 


202  COMPARATIVE  FREE   GOVERNMENT 

party  organization,  measures  its  strength,  conciliates  its  fac- 
tions, detines  its  issues,  selects  its  candidates,  and  arouses 
enthusiasm."'  These  are  all  exceedingly  important  things; 
they  must  be  done  and  done  effectively  if  party  government 
is  to  be  successful.  In  so  far  as  the  convention  has  accom- 
plished l-hem  it  has  been  an  agency  of  the  highest  value. 

The  convention  in  practice,  however,  has  not  always  proven 
to  be  the  admirable  institution  which  the  theory  calls  for.  It 
has  been  far  from  perfect ;  its  representation  of  the  party  voters 
far  from  ideal.  The  system,  of  which  the  national  convention 
is  the  apex,  is  too  complex.  The  convention  is  too  far  removed 
from  the  voters.  Their  voice  becomes  too  much  weakened,  their 
authority  and  control  too  much  diffused,  before  the  national 
convention  is  reached.  The  sense  of  personal  responsibility 
to  the  voters  on  the  part  of  delegates  becomes  less  and  less  keen 
the  farther  they  are  removed  from  the  original  local  primary. 
The  result  frequently  is  gross  misrepresentation  of  the  true 
party  opinion. 

Moreover,  the  convention  system  has  lent  itself  to  the  uses 
of  the  pohtical  bosses  and  machines,  and  has  shielded  corrupt 
practices.  The  nomination  of  candidates  has  too  frequently 
been  merely  the  ratification  of  a  "  slate  "  arranged  in  advance 
by  the  party  leaders.  This  has  been  true  particularly  of  State 
and  local  conventions.  The  framing  of  the  platform  has  too 
often  been  under  the  skillful  direction  of  the  agents  of  special 
interests  which  seek  legislation  in  their  own  favor,  at  the  ex- 
pense of  the  general  public,  or  oppose  legislation  which  is  de- 
signed to  prevent  them  from  doing  things  that  are  detrimentai 
to  the  public.  The  packing  of  caucuses,  the  bribery  of  dele- 
gates, the  objectionable  use  of  proxies,  the  fake  contests  among 
delegations,  the  manipulation  of  credentials,  the  log-rolling, 
the  disorderly  proceedings,  the  unfair  rulings  from  the  chair, 
—  these  are  all  familiar  things  in  connection  with  the  convention 
system.  It  is  not  to  be  understood  of  course  that  all  conven- 
tions are  characterized  by  these  objectionalile  practices;  far 
from  it.  It  is  the  jjurpose  here  merely  to  suggest  some  of  the 
serious  evils  which  have  grown  uj)  and  whith  have  made  the 
convention  system  so  imperfect  in  operation.  And  because  of 
these  things  nomination  by  delegate  conventions  has  become 

'  Meyer,  "  Nominating  Systems,"  p.  SJ. 


THE  NATIONAL   CONVENTION  203 

discredited.  Under  the  malign  influence  of  machine  politics 
the  conventions  have  increasingly  misrepresented  the  popular 
will. 

The  result  is  the  almost  startling  development  of  the  direct 
primary,  by  which  nominations  are  made  directly  by  the  voters. 
The  convention  as  a  nominating  agency  for  local  and  State 
officers  is  rapidly  giving  place  to  the  primary.  A  State-wide 
compulsory  primary,  applying  to  all  State  officers,  including 
United  States  Senators,  is  the  prevailing  system  of  nomination. 
Everywhere  there  are  the  same  secrecy,  the  same  legal  protec- 
tion, and  the  same  safeguards  against  corrupt  practices  as  are 
afforded  for  the  regular  elections.  The  general  acceptance  and 
approval  of  direct  nominations  mark  a  big  step  forward  in 
the  movement  for  democracy,  —  and,  as  previously  suggested, 
it  was  inevitable  that  sooner  or  later  the  suggestion  be  made 
that  the  principle  be  applied  to  the  selection  of  presidential  and 
vice  presidential  candidates.  The  presidency  has  become  the 
one  truly  representative  national  office  and  the  chief  weapon  in 
the  hands  of  the  people  for  accomphshing  their  will.  It  has 
already  been  democratized  to  a  large  degree,  as  compared  with 
what  the  f ramers  of  the  Constitution  intended,  but  by  no  means 
to  the  extent  that  the  people  desire.  It  is  therefore  natural 
that  the  wide  acceptance  of  the  direct  primary  in  nominating 
State  officers  and  members  of  Congress  should  cause  a  demand 
for  it  for  the  nomination  of  Presidents.  No  one  can  say  what 
the  result  of  this  demand  will  be.  It  may  be  the  complete 
elimination  of  the  national  convention,  the  most  interesting 
and  most  spectacular  feature  of  American  party  organization. 

It  should  be  borne  in  mind,  however,  that  the  system  of 
direct  nominations  has  not  proven  in  practice  to  be  entirely 
satisfactory.  Its  results,  in  fact,  have  fallen  far  short  of  what 
many  of  its  sponsors  expected  from  it.  It  cannot  be  said,  as 
yet,  that  it  has  acquired  a  permanent  status  as  an  institution  of 
government.  In  some  of  the  States,  as  in  Wisconsin,  which 
was  a  pioneer  in  the  adoption  of  the  primary  plan,  a  distinct 
reaction  has  set  in  against  it.  Many  progressive  thinkers  who 
helped  establish  the  system,  and  whose  belief  in  fundamental 
democracy  cannot  be  questioned,  have  grave  doubts  as  to  its 
permanent  value  and  its  efficacy  in  preventing  boss  domination 
and  the  selection  of  unfit  candidates  for  office.     What   the 


204  COMPARATIVE   FREE   GOVERNMENT 

future  will  bring  forth  with  respect  to  nomination  procedure, 
the  future  must  reveal.  The  primary  may  remain  as  it  has  been, 
or  a  regenerated,  reconstructed  convention  system  may  take 
its  place.  The  one  fact  which  seems  to  be  beyond  question  is 
that  the  people  are  determined  to  control  their  government  in 
all  of  its  phases ;  if  not  by  one  process,  then  by  another.  The 
government  is  to  be  democratic  in  more  than  name. 

REFERENCES 

Bryce.     The  American  CommonwcaHh,  Edition  1910,  Vol.  II,  Chaps.  LXIX, 

LXX. 
Ford.     The  Rise  and  Groivth  of  American  Politics,  Chap.  XVI. 
Meyer.     Nominating  Systems,  Chaps.  IV,  V. 
OsTROGORSKi.     Democracy  and  the  Party  System  in  the  United  States,  Chaps. 

II,  III,  IV,  V,  VIII. 
Ray.     Ati  Introduction  to  Political  Parties  and  Practical  Politics,  Chap.  VIII. 
Reinsch.     Readings  on  American  Federal  Government,  Chap.  XVI. 
VVoodburn.     Political  Parties  and  Party  Problems  in  the   United  States, 

Chaps.  X,  XI,  XII. 


CHAPTER  XVI 

Party  Machinery  and  Methods  —  National 

There  are  two  parts  to  the  organization  of  the  poHtical 
parties.  One  is  temporary,  transitory,  in  character,  and  the 
other  is  permanent.  The  conventions  constitute  the  one  and 
the  party  committees  the  other.  The  conventions  are  called 
into  existence  at  stated  times  for  specific  purposes,  —  the  nomina- 
tion of  candidates  and  the  adoption  of  party  {platforms.  In 
States  where  nominations  are  made  at  direct  primaries,  the  State 
conventions  have  only  the  platform  function  to  discharge.  But 
even  where  the  convention  system  remains  intact,  the  con\en- 
tion  is  in  existence  for  only  a  very  short  time.  In  a  single  day, 
perhaps,  or  two  or  three  days,  its  work  is  completed,  and  the 
convention  ceases  to  be.  For  a  few  brief  hours  it  embodies  the 
whole  party  and  exercises  the  highest  party  power;  then  it  is 
gone,  —  a  mere  incident  in  history. 

The  committees,  however,  are  enduring,  permanent  institu- 
tions. As  is  the  case  with  the  House  of  Representatives,  the 
committees  in  existence  at  any  particular  time  have  definite 
life  periods,  say,  two  or  four  years.  Their  members  hold  of&ce 
for  definite  terms.  At  the  end  of  the  periods  the  old  committees 
pass  from  power  and  new  ones  take  their  places.  The  personnel 
of  the  new  committees  may  be  different,  wholly  or  in  part, 
from  that  of  the  old,  yet  as  party  institutions  the  committees 
are  continuous  bodies.  The  old  committees  do  npt  disappear, 
until  the  new  ones  take  charge.  The  result  in  each  party  is 
a  great,  complicated  system  of  machinery  that  is  constantly  in 
operation  for  the  promotion  of  the  party's  interests.  Upon  the 
efircient  working  of  this  machinery,  made  up  of  the  various 
committees,  the  party  is  largely  dependent  for  its  success.  A 
knowledge  of  the  committees,  and  their  work  and  methods,  is 
essential,  therefore,  to  a  proper  understanding  of  the  party  sys- 
tem. 

20S 


2o6  CO.MIWRATIVE   FREE   GOVERNMENT 

The  permanent  committees  constitute  the  administrative 
branch  of  the  party's  organization.  There  are  two  main  func- 
tions that  must  be  performed.  One  is  to  formulate  and  give 
expression  to  the  party  will,  and  the  other  is  to  execute  that 
will,  to  carry  it  into  effect.  The  first  is  legislative  in  nature  and 
is  performed  by  the  party  conventions,  which  may  be  called 
the  party's  legislatures.  The  second  is  administrative  in  nature 
and  is  performed  by  the  permanent  committees,  which,  taken 
together,  may  be  called  the  party's  executive.  It  is  the  supreme 
business  of  the  party  committees,  or  executive,  to  win  elections 
for  the  party  so  that  its  agents  may  control  the  government 
and  its  will  be  embodied  in  public  policies.  The  object  of  all 
party  activities  is  the  control  of  the  government,  and  the 
function  of  the  committees  is  to  make  this  possible.  In  theory 
the  convention  and  the  primary  represent  the  direct  authority 
of  the  party  members.  The  committees,  however,  are  not  so 
directly  popular  in  their  origin,  but  represent  the  convention 
or  the  primary.  They  are  the  agents  for  executing  the  will 
of  these  popular  bodies. 

Each  convention  or  primary  district  has  its  own  committee. 
These  districts  in  the  main  correspond  to  the  various  govern- 
mental units.  There  are  as  many  party  committees,  there- 
fore, as  there  are  important  governmenlal  areas  for  which  public 
officers  must  be  elected.  It  is  obvious  that  there  is  in  the  whole 
Nation  an  enormous  number  of  party  officials.  It  may  be  said 
with  assurance  that  there  are  more  persons  holding  official 
positions  in  the  two  leading  parly  organizations  than  there 
are  in  all  the  elective  civil  offices  in  the  entire  country  above 
those  of  the  township  and  the  ward.  This  means  that  there  is 
a  veritable  army  of  workers  who  are  constantly  active  in  an 
official  way  in  support  of  each  party.  They  foster  and  promote 
the  party's  interests  not  only  during  the  heat  and  struggle  of 
election  campaigns,  but  also  during  the  c|uieter  periods  between 
elections  when  [)arty  enthusiasm  runs  low  and  party  spirit 
becomes  sluggish.  It  is  the  mission  of  party  committeemen 
not  only  to  lead  in  and  direct  the  party's  contests,  but  also,  at 
all  limes,  to  nourish  and  encourage  party  sentiment  ami  build 
up  the  party  organization  so  ihal  it  will  be  always  in  good 
fighting  condition.  Tlu'  duties  of  coiiunilticnuii,  |)arti(  ularly 
of  members  of  the  more  important  committees,  are  sometimes 


PARTY  MACHINERY   AND   METHODS  —  NATIONAL      207 

arduous,  but  as  a  rule  are  performed  with  a  fidelity  which  ex- 
cites admiration ;  and  particularly  so  in  view  of  the  fact  that 
they  serve  without  compensation.  It  is  true  that  many  of  them 
receive  appointments  to  offices  as  rewards  for  party  service, 
and  no  doubt  pull  the  wires  to  obtain  these  honors.  But  a 
great  many  committeemen,  as  well  as  other  party  workers, 
give  to  their  parties  faithful  and  effective  service  in  unheralded 
manner  without  thought  of  recognition  or  reward  of  any  kind. 
This  is  particularly  the  case  in  the  rural  districts.  The  real 
strength  of  the  parties,  as  a  matter  of  fact,  lies  in  the  devotion 
and  activity  of  men  of  this  type.  Considering  the  selfishness 
and  crookedness  which  so  frequently  characterize  party 
struggles,  it  is  astonishing  to  one  unfamiliar  with  conditions  to 
discover  in  America  so  large  an  amount  of  genuinely  disinterested 
party  activity  as  is  to  be  found  in  all  of  the  parties. 

The  National  Committee.  —  The  committee  of  highest 
authority,  standing  at  the  head  of  the  permanent  party  machin- 
ery, is  the  National  Committee,  to  which  frequent  reference 
has  been  made  in  connection  with  the  national  convention.  Its 
place  is  one  of  the  highest  importance  and  responsibiUty,  for 
upon  its  work  depends,  in  large  degree,  the  party's  chances  of 
controlling  the  presidency,  and  through  it  the  whole  executive 
branch  of  the  national  government.  Its  field  of  operation  is  the 
Nation  itself.  It  is  the  one  permanent  party  institution  which 
stands  for  the  unity  of  the  whole  party.  It  represents  all  the 
States  and  Territories  and  is  concerned  with  the  party  fortunes 
in  all  parts  of  the  Nation. 

The  National  Committee  owes  its  authority  to  the  national 
convention  by  which  it  is  chosen  every  four  years  when  the 
convention  assembles  to  nominate  the  national  ticket.  Each 
State  and  each  Territory  has  one  representative.  Though  the 
formal  election  is  by  the  national  convention,  the  actual  selec- 
tion of  its  members  is  made  by  the  various  State  and  Territorial 
delegations  to  the  convention.  Each  delegation  is  free  to  make 
its  own  choice,  designating  one  of  its  own  members  or  some 
other  active  and  influential  party  leader  in  the  State  or  Terri- 
tory it  represents.  Strictly  speaking,  this  choice  is  a  mere 
nomination  to  the  convention,  which  makes  the  official  appoint- 
ment of  the  committee.  However,  the  convention  always 
accepts    the    recommendations   which    the    delegations    make. 


2o8  COMPARATIVE   FREE   GOVERNMENT 

The  new  committee  thus  chosen  takes  charge  of  the  party's 
affairs  immediately  upon  the  adjournment  of  the  convention 
and  continues  in  power  for  four  years  until  the  next  national 
convention  is  organized.  During  the  short  time  that  the  con- 
vention is  in  existence  it  embodies  the  supreme  party  power 
and  takes  back  to  itself  the  power  delegated  to  the  National 
Committee  by  the  last  convention.  Before  it  adjourns  the 
convention  confers  some  of  its  powers  upon  the  new  National 
Committee,  which  begins  at  once  to  plan  for  the  presidential 
campaign  which  the  party  has  just  started. 

The  first  thing  the  committee  must  do  is  to  effect  its  own  or- 
ganization by  the  election  of  its  chairman,  vice  chairman, 
secretary,  .and  treasurer,  and  the  appointment  of  the  necessary 
subcommittees.  The  election  of  the  chairman  is  a  merely 
formal  procedure  notwithstanding  the  fact  that  he  is  by  long 
odds  the  most  important  member  of  the  committee.  The  real 
selection  of  the  chairman  is  made  by  the  party's  candidate  for 
the  presidency.  The  relationship  between  the  chairman  and 
the  candidate  is  so  close,  and  the  latter  has  so  much  at  stake 
in  the  election,  that  the  propriety  of  his  naming  the  chairman  is 
everywhere  conceded.  He  may  select  some  one  from  within 
the  committee  or  some  one  from  without.  The  committee  then 
takes  formal  action  and  the  candidate's  nominee  becomes  the 
committee's  chairman  and  as  such  the  head  of  the  entire  national 
party  organization.  His  position  is  one  of  great  power  and 
responsibility,  and  upon  his  understanding  of  practical  politics, 
his  capacity  for  leadership,  and  his  initiative  and  skill  in 
managing  the  cam[)aign,  tlie  fortunes  of  the  party  largely 
depend. 

Aside  from  the  chairman,  the  most  important  official  is 
perhaps  the  secretary,  who  becomes  the  execuli\e  ofiicer  of 
the  committee.  He  has  charge  of  the  committee's  headciuarters 
and  is  called  ui)on  to  do  a  vast  amount  of  detailed  work  and 
keep  intimately  in  touch  with  every  phase  of  the  committee's 
activities.  He  is  not  so  miu  Ii  in  ilic  Hnie  light  as  is  the  chair- 
man, but  upon  him  in  high  degree  the  chairman  and  the  com- 
mittee are  dependent  for  the  success  of  their  ])lans.  The 
treasurer  is  also  a  very  responsible  and  imi)<)rtant  officer,  for 
to  him  chiefly  falls  the  duty  of  raising  tin-  funds  necessary  for 
tlie    cam[)aign.      Without    adecjuute    funds    the   committee   is 


PARTY  MACHINERY  AND   METHODS  —  NATIONAL      209 

seriously  handicapped  and  a  successful  campaign  can  hardly 
be  waged.  The  nature  of  his  duties  gives  to  the  treasurer  a 
pivotal  place  in  the  committee's  organization.  In  his  selec- 
tion, also,  the  presidential  candidate  is  likely  to  have  some  voice, 
for  the  outcome  of  the  election  may  be  materially  influenced 
by  the  sources  of  the  party  funds  and  the  manner  in  which  they 
are  solicited  and  collected.  Many  grave  political  scandals 
have  arisen  in  connection  with  campaign  contributions. 

National  Committee  and  National  Convention.  —  The  work 
of  the  National  Committee  naturally  divides  into  three  rather 
unrelated  parts ;  first,  its  duties  in  connection  with  the  national 
convention ;  second,  its  management  of  the  presidential  elec- 
tion campaign ;  and,  third,  its  activities  during  the  quiescent 
period  between  elections.  With  respect  to  the  order  of  their 
occurrence,  the  committee's  convention  work  comes  last ;  in 
fact,  just  at  the  end  of  the  four-year  term.  The  first  work  of  a 
new  National  Committee  is  to  direct  the  campaign  for  the  elec- 
tion of  its  presidential  candidate. 

All  arrangements  for  the  national  convention  are  made  by 
the  committee.  The  first  step  is  taken  when  the  chairman 
summons  the  committee  for  the  purpose  of  preparing  the  official 
call  for  the  convention,  and  determining  the  time  and  place  at 
which  it  shall  be  held.  This  meeting  is  usually  held  in  Decem- 
ber or  January,  some  six  months  prior  to  the  time  of  the  national 
convention.  The  content  of  the  official  call  has  been  given  in 
the  last  chapter.^  Nothing  more  need  be  said  about  it  here, 
except  to  call  attention  to  the  fact  that  the  Republican  prac- 
tice of  specifying  the  manner  in  which  delegates  to  the  conven- 
tion should  be  chosen  has  at  times  given  rise  to  serious  trouble. 
The  committee  establishes  the  official  party  rule  covering  the 
selection  of  delegates  unless  the  convention  itself  chooses  to  say 
what  the  rule  shall  be.  Any  deviation,  then,  from  the  pro- 
cedure determined  upon  by  the  committee  will  cause  contests 
and  disputes  within  the  party  which  may  lead  to  party  dis- 
ruption. This,  in  fact,  was  one  of  the  difficulties  confronting 
the  Republican  convention  in  191 2  and  which  led  to  the  spHt 
that  resulted  in  the  organization  of  the  Progressive  party. 
Some  of  the  delegates  had  been  elected  under  State  primary 
laws  that  were  at  variance  with  the  official  call.     The  National 

•  Above,  p.  105.     ■' 

P 


2IO  COMPARATRE    FREE    G0\'ERN:MEXT 

Committee,  in  passing  upon  the  claims  of  contesting  delegations 
caused  by  this  conflict,  chose  to  stand  by  its  own  rule,  even 
in  the  face  of  party  disaster.  This  action  met  with  such  con- 
demnation, however,  that  the  committee  has  been  forced  to 
propose  radical  changes  in  the  rules  by  which  the  rights  of  dele- 
gates chosen  at  primaries  are  fully  protected.  The  Demo- 
cratic practice  has  been  to  leave  the  selection  of  delegates 
wholly  to  the  States,  and  so  in  Democratic  conventions  this 
difficulty  has  not  arisen. 

The  selection  of  the  place  at  which  the  convention  is  to  be 
held  is  by  no  means  an  unimportant  detail.  It  is  sometimes  the 
cause  of  sharp  controversy  in  the  committee.  Always  there  is 
keen  rivalry  among  a  number  of  cities  which  seek  to  entertain 
the  convention  and  are  willing  to  pledge  large  sums  of  money 
for  the  privilege.  The  successful  city  must  have,  of  course,  a 
large  convention  hall  and  adequate  hotel  and  railway  accommo- 
dations. The  decision  which  the  committee  finally  makes  may 
have  a  direct  effect  upon  the  convention's  choice  of  a  presi- 
dential candidate  and,  therefore,  will  likely  be  in  accord  with 
the  preference  of  the  majority  of  the  committee  among  the  as- 
pirants for  the  nomination.  The  convention  is  affected  more 
or  less  by  its  surroundings.  A  striking  example  of  the  influence 
which  the  place  of  meeting  may  have  upon  the  convention's 
work  is  found  in  the  Republican  convention  held  in  Chicago  in 
i860.  Abraham  Lincoln's  chances  for  the  nomination  were 
greatly  improved  by  the  fact  that  the  convention  was  held  in 
his  own  State.  It  is  generally  believed  that  William  H.  Seward 
would  have  been  nominated  over  Lincoln  if  the  convention  had 
been  held  in  New  York  or  some  other  eastern  city. 

Prior  to  the  time  set  for  the  convention  to  assemble,  the 
committee  makes  all  the  needed  arrangements  for  its  accommo- 
dation. Committee  headquarters  are  opened  ;  the  convention 
hall  is  obtained,  decorated,  and  made  ready  in  all  respects; 
tickets  of  admission  are  printed  and  circulated ;  the  official 
delegate  badges  are  prepared ;  accommodations  for  the  news- 
paper rei)resentatives  are  provided  for;  llie  lemi)orary  chair- 
man and  the  other  convention  officers  are  selected ;  arrange- 
ments are  made  with  the  local  police  for  the  maintenance  of 
order ;  contests  between  rival  delegations  claiming  seats  in  the 
convention  are  decided,  and  the  temporary  roll  of  the  conven- 


PARTY   MACHINERY   AND   METHODS  —  NATIONAL      21 1 

tion  is  made  up.  Nothing  is  overlooked  that  seems  necessary 
or  desirable  for  the  convenience  of  the  convention  and  the  satis- 
factory performance  of  its  duties.  The  last  week  before  the 
convention  is  likely  to  be  a  laborious  time  for  the  National 
Committee. 

Among  the  duties  suggested,  the  naming  of  the  temporary 
chairman  and  the  hearing  of  contests  among  delegates  are  the 
most  important.  The  temporary  chairman  delivers  the  "  key 
note  "  speech,  and  through  this,  as  well  as  through  his  power 
as  presiding  officer,  may  have  marked  influence  upon  the  out- 
come of  the  convention's  deliberations,  particularly  upon  the 
platform  adopted.  By  deciding  contests  among  delegates  the 
National  Committee  determines  who  have  the  right  to  partici- 
pate in  the  preliminary  proceedings  of  the  convention.  This 
may  not  only  influence,  but  may  practically  determine  the  re- 
sult of  a  close  fight  for  the  presidential  nomination.  Where 
serious  factional  troubles  exist  this  function  of  the  committee 
acquires  additional  significance.  A  marked  preference  for  one 
faction  or  the  other  may  tend  to  wreck  the  party  by  intensify- 
ing personal  and  group  antagonisms.  The  possibility  of  thus 
promoting  unfortunate  dissensions  within  the  party  is  increased 
by  reason  of  the  fact  that  the  committee  has  been  in  power  for 
four  years  and  is  about  to  give  way  to  a  new  one.  During  this 
time  party  sentiment  may  have  changed  radically  from  what 
it  was  when  the  committee  was  appointed  and,  as  a  result, 
the  majority  of  the  committee  may  at  the  time  of  the  conven- 
tion stand  for  policies  and  practices  which  the  party  condemns. 
The  committee  is  supposed  to  be  merely  the  agent  of  the  party 
and  to  do  its  will,  but  under  such  conditions  it  may  seek  to 
become  the  master  of  the  party  and  to  defeat  its  will.  The 
seriousness  of  a  situation  of  this  kind  needs  no  comment.  Since 
the  Republican  convention  of  1912,  where  this  antagonism  was 
sharply  revealed,  the  demand  has  developed  for  the  election  of 
the  new  committee  in  time  for  it  to  arrange  for  the  convention 
and  to  pass  upon  the  merits  of  the  claims  put  forward  by  con- 
testing delegations.  Under  such  a  plan  the  committee  would 
be  representative,  presumably,  of  the  actual  party  sentiment 
and  would  be  in  harmony  with  the  majority  in  the  convention. 
Some  such  reform  as  this  is  very  likely  to  occur,  unless,  indeed, 
the  convention  system  itself  is  subjected  to  still  more  radical 


212  COMPARATIVE   FREE   GOVERNMENT 

changes.  It  is  only  very  recently  that  the  popular  mind  has 
come  to  comprehend  the  great  power,  —  a  power  amounting 
almost  to  dictation,  at  times,  —  which  the  National  Committee 
has  taken  to  itself  in  the  last  thirty  years  or  so.  Limitation 
of  this  power,  at  least  with  respect  to  the  committee's  control 
over  the  national  convention,  is  inevitable.  The  nation-wide 
movement  for  the  democratization  of  government  in  all  its 
phases  will  not  pass  the  National  Committee  untouched. 

The  Committee  and  the  Election  Campaign.  —  The  most 
important  work  of  the  National  Committee  from  the  standpoint 
of  the  party  is  the  management  of  the  presidential  election 
campaign.  It  is  in  this  that  the  skill  and  astuteness  of  the  chair- 
man, and  the  zeal  and  capacity  of  his  committee  associates,  are 
tested  to  the  utmost.  Their  one  supreme  duty  is  to  win  the 
election  and  by  so  doing  place  or  retain  their  party  in  power. 
They  are  the  head  of  the  great  army  of  party  workers  in  all  the 
States,  organized  into  multitudes  of  State  and  local  committees, 
and  it  is  their  business  to  see  that  the  whole  organization  is 
working  smoothly  and  effectively.  To  do  this  they  must  keep 
in  intimate  touch  with  the  political  developments  and  party 
activities  in  all  parts  of  the  country.  Where  the  organization 
is  weak,  it  must  be  strengthened ;  where  party  spirit  is  la.x, 
enthusiasm  must  be  aroused ;  where  party  funds  are  inad- 
equate, money  must  be  supplied ;  where  factional  differ- 
ences are  rife,  harmony  must  be  restored.  The  period  of 
the  campaign  is  filled  with  intensive,  systematic,  strenuous 
labor  which  goes  on  without  Icl-u])  until  tlic  hour  of  the 
election  has  arrived. 

All  the  States  receive  attention  from  the  comniittee,  although 
not  in  equal  degree.  The  Slates  that  are  "  solid  "  or  "  safe  " 
for  the  party  are  left  largely  to  their  State  and  local  committees. 
The  struggles  in  the  Slates  that  are  "  douhtful  "  or  "  pivotal," 
however,  are  under  the  constant  super\  ision  of  the  National 
Committee.  There  the  most  elTective  i);irty  workers  and 
speakers  are  sent,  the  money  poured  in,  and  everything  done 
that  can  be  devised  by  experienced  |)arty  leaders  to  lieij)  carry 
the  day;  for  upon  the  outcome  of  a  single  one  of  these  States 
the  winning  of  the  presidency  may  depend.  With  such  a  prize 
at  stake,  no  chances  can  be  taken  ;  every  possible  move  musl 
be   made   that    gives   i)romise   of   increasing   the   party's   vole. 


PARTY   MACHINERY  AND   METHODS  —  NATIONAL      213 

Above  all,  the  party's  organization  in  these  States  must  be  per- 
fected. "  Every  experienced  political  manager  knows  that  the 
first  essential  to  the  successful  conduct  of  a  campaign  is  organi- 
zation. The  next  important  essential,  it  has  been  said,  is  or- 
ganization; a  third  is  organization.  The  organization  must  be 
thorough  and  complete.  The  National  Committee,  the  State 
committees,  the  county  committees,  the  township  committees, 
and  the  appointed  party  agents  and  workers  in  the  city  pre- 
cincts and  wards,  must  all  be  in  close  articulation  and  coopera- 
tion with  one  another."  ^ 

To  enable  the  committee  to  do  its  work  more  successfully, 
a  number  of  subcommittees  are  appointed,  each  with  its  own 
special  duties.  These  usually  consist  of  an  executive  committee, 
a  finance  committee,  a  committee  in  charge  of  the  bureau  of 
speakers,  a  committee  in  charge  of  literary  and  press  matters, 
and  a  committee  in  charge  of  the  distribution  of  pubHc  docu- 
ments.- All  of  these  subcommittees  are  essential  parts  of  the 
National  Committee's  organization.  The  most  important, 
however,  are  the  executive  and  finance  committees.  The  for- 
mer, with  the  chairman  of  the  National  Committee  at  its  head, 
has  general  charge  of  the  campaign,  and  is  sometimes  called 
the  "  campaign  committee."  Its  members  are  carefully 
chosen  from  the  shrewdest  political  managers  available.  It  is 
in  immediate  contact  with  the  campaign  activities  in  all  the 
States.  The  finance  committee,  as  its  name  implies,  is  charged 
with  the  task  of  raising  funds  for  the  prosecution  of  the  cam- 
paign,—  of  supplying  the  party  with  the  "sinews  of  war." 
The  treasurer  of  the  National  Committee  is  its  chairman  and 
together  with  the  national  chairman,  bears  the  brunt  of  the 
work  of  obtaining  campaign  contributions.  The  difficulties 
involved  in  this  task  are  sometimes  very  great.  Until  a  few 
years  ago,  large  contributions  from  corporations  and  wealthy 
men,  who  for  business  reasons  were  interested  in  the  party's 
success,  were  looked  upon  with  general  complacence,  if  not 
approval.  The  special  interests  were  willing  to  pay,  in  the 
form  of  campaign  contributions,  either  for  the  enactment  of 
legislation  that  was  favorable  to  them  or  for  the  defeat  of 
legislation   that  was  objectionable ;    and   the  party  managers 

•  Woodburn,  "  Political  Parties  and  Party  Problems  in  the  United  States," 
p.  202.  -Ibid.,  p.  20Z. 


214  COMPARATIVE   FREE   GOVERNMENT 

were  willing  to  have  them  pay.  The  general  public  was  ig- 
norant of  what  transpired,  since  no  publicity  was  given  to  party 
finances,  and  the  public  conscience  was  not  aroused.  Under 
those  conditions  money  was  easily  obtained  for  campaign  pur- 
poses. But  the  situation  now  is  very  different.  Campaign 
contributions  are  now  strictly  regulated  by  State  and  national 
statutes,  and  publicity  is  given  to  the  source  and  expenditure 
of  party  funds.  Corporation  contributions  are  forbidden. 
This  has  been  a  most  wholesome  reform,  but  it  has  increased 
considerably  the  difficulties  in  the  way  of  the  National  Com- 
mittee's treasurer  and  finance  committee.  These  difficulties 
must  be  overcome,  however,  for  without  plentiful  funds  the 
campaign  cannot  be  carried  on  successfully.  Each  party  spends 
an  enormous  sum  of  money  in  conducting  the  presidential  con- 
test in  ways  that  are  both  legally  and  morally  proper,  such  as, 
the  maintenance  of  committee  headquarters,  printing,  postage, 
transportation,  renting  of  halls,  sending  out  speakers,  and  dis- 
tributing campaign  literature.  With  the  most  economical 
management  the  expense  will  approximate  a  million  dollars 
for  each  of  the  leading  parties ;  and  in  some  campaigns  it  has 
been  several  times  this  amount.  It  is  obvious  that  the  financial 
side  of  the  National  Committee's  work  must  always  be  an  object 
of  great  concern. 

The  remaining  subcommittees  have  to  do  with  the  work  of 
placing  the  party's  claims  before  the  voters,  developing  party 
sentiment  and  arousing  enthusiasm  for  the  ticket.  The  com- 
mittee in  charge  of  the  speakers'  bureau  is  responsible  for  pro- 
viding and  sending  out  speakers  wherever  they  are  needed.  It 
may  have  on  its  list  several  hundred  of  the  best  available 
speakers,  some  of  whom  receive  compensaliDU  for  their  efforts. 
It  is  the  business  of  the  committee  to  send  these  men  where 
they  will  accomi)lish  the  most  good.  This  means  that  the 
committee  must  understand  thoroughly  the  local  conditions  in 
the  various  States.  The  speaker  must  fit  the  conditions.  An 
extreme  radical  is  not  the  man  for  a  community  of  extreme 
conservatism.  All  phases  of  party  opinion  must  be  given 
respectful  consideration,  racial  and  religious  prejudices  heeded, 
and  antagonisms  avoided  wherever  possible.  To  manage  the 
speakers'  bureau  successfully  requires  thorough  understand- 
ing of  all    the  (TOSS  currents,   the  conflicting  forces,  of   |)arty 


PARTY   MACHINERY   AND   METHODS  —  NATIONAL      21 5 

life,  and  of  the  "  inside  "  things  of  practical  politics.  Not  all 
the  speakers,  of  course,  are  under  the  control  of  this  bureau. 
There  are  thousands  of  them  at  work  under  the  direction  of 
State  and  local  committees. 

The  committee  in  charge  of  literary  and  press  matters  and 
the  committee  in  charge  of  the  distribution  of  documents  look 
after  the  publicity  side  of  the  campaign.  Instruction  must 
be  given  the  voters  and  their  reason  and  intelligence  appealed 
to  through  printed  matter.  This  takes  the  form  of  newspaper 
and  magazine  articles  and  advertisements,  and  campaign  docu- 
ments of  various  kinds.  A  great  many  special  articles  designed 
for  newspaper  use  are  prepared  under  the  direct  supervision 
of  the  literary  bureau,  and,  without  charge,  sent  to  the  news- 
papers for  publication.  The  country  weeklies,  particularly,  are 
solicited  to  publish  these.  A  press  agent,  skilled  in  journalistic 
work,  is  regularly  employed  by  the  bureau.  Campaign  docu- 
ments are  multitudinous  in  number  and  vary  greatly  in  form. 
Cards,  posters,  pamphlets,  speeches,  and  books  are  prepared 
and  distributed,  some  free  and  others  at  low  charges.  The 
campaign  textbook  should  receive  special  mention.  This  is 
a  volume  of  three  hundred  pages  or  so,  carefully  prepared,  and 
containing  information  of  all  kinds  for  the  use  of  campaign 
speakers  and  party  workers.  Campaign  biographies  of  the 
presidential  and  vice  presidential  candidates  are  also  prepared 
and  sold  at  popular  prices.  Pamphlets  and  posters  of  various 
kinds  and  speeches  of  the  candidates  and  leading  members  of 
Congress  are  distributed  in  enormous  numbers.  Great  use  is 
made  of  partisan  speeches  delivered  in  Congress  because  many 
of  these  may  be  sent  out  under  the  congressional  franking 
privilege,  without  expense  for  postage.  Much  of  this  litera- 
ture, however,  is  not  mailed  directly  to  the  voters,  by  the  liter- 
ary bureau,  but  is  shipped  in  bulk  to  State  and  local  committees 
and  by  them  distributed  where  the  need  is  greatest.  With 
respect  to  the  output  of  campaign  documents  in  a  presidential 
year,  the  following  is  suggestive :  "  In  the  campaign  of  1900, 
for  example,  the  Democrats  published  158  different  documents 
and  distributed  over  twenty-five  million  copies,  and  the  Republi- 
can party  probably  surpassed  this  record.  In  that  year  eight 
million  copies  of  one  of  Mr.  Bryan's  speeches  were  printed  in 
eleven  different  languages,   and  seven  million  copies  of  Mr. 


2l6       COMPARATIVE  FREE  GOVERNMENT 

McKinley's  letter  of  acceptance  were  distributed.  In  one  day 
four  and  a  half  million  copies  of  a  single  speech  were  sent  out 
from  the  Republican  headquarters  in  Chicago,  and  over  three 
tons  of  other  documents  were  shipped  on  the  same  day."  ^ 

This  brief  statement  of  the  campaign  duties  of  the  National 
Committee  gives  only  in  a  general  way  a  glimpse  of  the  work 
which  must  be  done  by  the  parties  in  connection  with  the  pres- 
idential election.  It  is  not  designed  to  be  exhaustive,  but 
merely  to  suggest  the  usual  plan  of  campaign.  To  describe 
this  in  detail  would  require  a  volume.  All  that  is  desired  is  to 
bring  out  clearly  the  huge  proportions  of  the  task  with  which 
the  National  Committee  is  charged,  and  to  outline  the  manner 
in  which  it  organizes  for  this  and  the  methods  it  pursues. 

Committee  Activities  between  Elections.  —  The  third  part 
of  the  National  Committee's  work,  —  that  which  it  does  during 
the  three  years  intervening  before  the  next  campaign  opens,  — 
is  very  different  in  character  from  that  which  it  does  with  ref- 
erence to  the  presidential  election.      The  circumstances  sur- 
rounding the  committee  during  the  two  periods  are  radically 
dissimilar.     While  the  election  campaign  is  on,   the    National 
Committee   is   decidedly   in    the   foreground.     Its   plans   and 
actions  are  chronicled  in  the  daily  press.     The  eye  of  the  public 
is  upon  it.     But  when  the  election  is  over,  it  almost  immediately 
drops  into  the  background,  if  not  out  of  sight.     Its  name  ap- 
pears only  infrequently  in  the  newspapers,  and  the  general  public 
ceases  to  give  attention  to  it.     This  is  only  a  little  less  true  of 
the  committee  that  was  successful  in  the  election  than  of  the  one 
that  was  defeated.     Does  this  mean,  however,  that  the  National 
Committee  has  become  unimportant  and  negligible  as  a  party 
institution  until  the  time  comes  round  for  the   next  national 
convention?     To  some  extent,  there  is  ground  for  this  belief. 
The  committee,  as  a  committee,  has  no  formal  duties  to  dis- 
charge during  this  time.     It  holds  no  meetings  and  seldom  main- 
tains even  the  semblance  of  headquarters.     Yet  the  committee 
is  hardly  in  the  comatose  condition  which  the  casual  observer 
might  ascribe  to  it.     Information  concerning  its  functions  dur- 
ing this  period  of  lapse  is  not  easily  obtained,  but  there  is  good 
evidence  that  its  members  continue  to  serve  the  party  in  an 
effective,   though  quiet  manner.     It  was  made  a  part  of  the 

•  Kay,  "  InlruiJutlion  to  Political  I'artics  and  Practical  I'ulitics,"  p.  200. 


PARTY  MACHINERY  AND  METHODS  —  NATIONAL      217 

duty  of  the  first  Democratic  National  Committee,  established 
in  1848,  to  "  promote  the  Democratic  Cause."  This  work  of 
"  promoting  the  party  cause  "  is  the  real  work  of  every  National 
Committee  and  the  opportunities  for  doing  it  are  obviously  not 
confined  to  the  period  of  the  presidential  campaign.  The 
party  machinery  must  not  be  neglected  and  allowed  to  deterio- 
rate or  the  party  will  suffer  seriously  in  the  next  election. 
Factional  differences  within  the  party  must  be  held  in  check 
and  obliterated,  if  possible,  and  dissensions  healed.  The 
National  Committee,  through  tactful  efforts,  is  in  a  position 
to  serve  the  party  in  a  most  practical  and  highly  beneficial 
way  by  harmonizing  discordant  and  antagonistic  elements 
within  it. 

Moreover,  the  success  of  a  party  depends  in  no  small  degree 
upon  a  clear  understanding,  on  the  part  of  its  leaders,  of  the 
significance  of  political  developments  from  day  to  day.  It  is 
no  less  essential  for  the  party  in  opposition  than  for  the  party  in 
power  to  gauge  accurately  the  state  of  the  public  mind.  The 
effect  of  policies  proposed,  as  well  as  policies  enacted,  must  be 
measured  so  as  to  guard  against  a  loss  of  popular  confidence.  It 
is  necessary,  therefore,  for  both  those  who  are  in  control  of  the 
government  and  those  who  are  leading  the  opposition,  to  be 
intimately  familiar  with  what  is  going  on  among  the  masses  of 
the  people.  In  this  work  of  analyzing  public  opinion  and 
studying  the  trend  of  political  sentiment  with  a  view  to  pre- 
venting party  blunders,  members  of  the  National  Committee 
have  one  of  their  largest  opportunities  for  "  promoting  the 
party  cause." 

In  one  other  way,  also,  members  of  the  committee  represent- 
ing the  party  in  power  are  of  assistance  both  to  the  party  and  to 
the  administration.  This  is  in  connection  with  the  distribu- 
tion of  patronage.  The  chairman  of  the  committee,  who  is  a 
close  personal  adviser  of  the  President,  is  particularly  influential 
in  this  respect.  His  indorsement  of  a  candidate  for  an  appoint- 
ment to  office  is  certain  to  carry  great  weight  with  the  Presi- 
dent. This,  indeed,  is  one  of  the  sources  of  the  chairman's 
power  over  his  associates  in  the  party  organization,  many  of 
whom  look  upon  him  as  the  dispenser  of  party  patronage. 
This  has,  in  fact,  been  literally  true  with  some  chairmen.  Two 
notable  examples  arc  found  in  Senator  A.  P.  Gorman,  who  led 


2l8  COMPARATIVE  FREE  GOVERNMENT 

the  Democrats  to  victory  in  1884,  and  Senator  Marcus  Hanna, 
who  managed  the  Republican  campaigns  of  1896  and  1900.^ 
Both  of  these  men  wielded  tremendous  influence  over  appoint- 
ments to  office  and  greatly  increased  the  prestige  of  the  national 
chairman.  Particularly  was  this  true  of  Senator  Hanna  who 
was  given  substantially  a  free  hand  in  apportioning  party  patron- 
age in  the  Southern  States.  His  indorsement,  in  fact,  at  any 
time  practically  insured  an  appointment.  Chairman  Hanna 
is  not  to  be  taken  as  typical,  however,  for  in  him  the  national 
chairman  reached  the  high  tide  of  influence.  At  all  times,  it 
is  to  be  remembered,  the  Senators  and  Representatives  have  a 
great  deal  to  say  about  federal  appointments. 

In  States  in  which  the  President's  party  has  no  representa- 
tives in  either  house  of  Congress,  the  members  of  the  National 
Committee  from  those  States  become  influential  factors  in 
the  distribution  of  patronage.  This  is  also  true  where  the 
party  controls  only  a  part  of  the  congressional  delegation. 
The  committeeman  becomes  a  referee  for  settling  disputes 
as  to  preference,  and  the  President  looks  to  him  for  guidance. 
It  is  his  business  in  all  this  to  look  after  the  interests  of  the 
organization  and  to  see  that  appointments  are  not  made  which 
will  tend  toward  party  disruption.  One  of  his  prime  functions 
always  is  to  prevent  party  divisions  and  factional  strife.  And 
no  other  thing  is  so  fruitful  of  these  as  is  the  dispensing  of  the 
spoils  of  office. 

REFERENCES 

Bryce.     The  American  Commouurallli,  Kdition  1910,  Vol.  II,  Chaps.  LXXI, 

LXXII,  LXXIII. 
Macy.     Farly  Orgatiizalion  and  Machinery,  Chap.  VI. 
OSTROGORSKI.     Dcmocrucv  and  llie  J'arlv  Syslcni  in  the  United  Slates,  Chaps. 

IX,  X. 
Ray.     An  Introduction  to  Political  Parties  and  Practical  Politics,  Chaps.  IX, 

pp.  172-179,  X,  XI. 
WooDBURN.     Political   Parties   and   Party   Problems   in   the    United  Stales, 

Cliup.  XIII. 

'  Jones,  "  HcadiriKS  on  Parties  and  Elections,"  pp.  100-205. 


CHAPTER  XVII 

Party  Machinery  and  Methods  —  State  and  Local 

It  has  been  made  clear  in  the  preceding  chapter  that  the 
organization  of  each  party  consists,  in  addition  to  the  National 
Committee,  of  a  large  number  of  State  and  local  committees. 
Each  of  these  has  its  own  set  of  ofl&cers,  its  own  field  of  action, 
and  its  own  work  to  do.  Each  is  an  important  part  of  the 
party  machine.  In  fact,  it  is  to  the  fidelity,  enthusiasm,  and 
efiiciency  of  these  local  and  State  committees  that  the  National 
Committee  must  look  for  the  success  of  its  plans.  Without  all 
this  subordinate  organization  the  National  Committee  would 
be  helpless. 

Each  State  has  its  own  organization  which  is  entirely  separate 
from  those  of.  other  States.  It  must  be  remembered  that  the 
presidential  election,  though  first  in  importance,  is  only  one 
of  many  elections  which  the  parties  seek  to  carry.  There  is  a 
vast  number  of  elective  local  and  State  offices  which  each  party 
is  eager  to  control.  The  successful  party  has  a  tremendous 
advantage  over  its  opponent.  It  is  through  this  control,  to  a 
large  extent,  that  the  organization  is  kept  intact.  The  elective 
offices  carry  with  them  a  large  number  of  appointive  positions, 
and  these,  except  where  civil  service  laws  prevent,  are  given  to 
party  men.  It  is  easily  seen,  therefore,  that  it  is  necessary  for 
the  party  in  each  State  to  maintain  an  efficient  organization  to 
look  after  its  interests  in  all  these  elections.  Even  in  the  year 
of  the  great  presidential  election,  the  national  ticket  is  not  the 
only  one  that  is  of  concern  to  national  as  well  as  State  party 
managers.  There  must  also  be  chosen  Senators  and  Repre- 
sentatives in  Congress,  Governors,  and  other  State  officers, 
members  of  the  State  legislatures,  officers  for  counties,  cities, 
towns  and  townships,  wards  and  villages.  The  lists  of  offices 
to  be  filled  in  the  various  States  are  not  identical,  of  course, 
but  in  each  tliere  is  a  large  number  of  local  contests  to  be  de- 

219 


2  20  COMPARATRK   TREE   GOVERNMENT 

cidcd  at  the  same  time  the  presidential  battle  is  determined. 
Sometimes  it  hai)i)ens  that  local  contests  are  the  cause  of  even 
keener  excitement  and  enthusiasm  than  is  the  presidential 
election.  In  fact,  the  party  managers  depend  in  no  small 
degree  upon  these  local  fights  to  arouse  party  spirit  and  help 
bring  the  voters  to  the  polls.  It  is  for  this  reason  that  the 
managers  are  so  desirous  of  having  full  party  tickets  nominated 
in  all  the  governmental  divisions  where  elections  are  to  occur. 
The  State  and  national  tickets  are  certain  to  profit  from  the 
activity  caused  by  the  local  contests.  Party  committees  in 
the  various  districts  to  look  after  these  local  elections  are  es- 
sential, therefore,  to  the  party's  success  in  States  and  Nation. 

The  State  Central  Committee.  —  At  the  head  of  the  State 
organization  stands  the  State  committee,  usually  called  the 
State  Central  Committee.  This  committee  bears  the  same 
relation  to  the  State  organization  that  the  National  Committee 
does  to  the  national  organization.  It  is  chosen,  as  a  rule,  in 
much  the  same  manner  as  the  National  Committee,  is  organized 
in  a  similar  way,  and,  within  its  more  limited  district,  has  the 
same  work  to  do.  In  the  election  of  the  President,  the  State 
committee,  though  organically  independent  of  the  National 
Committee,  comes  under  the  direction  of  the  latter  and  be- 
comes an  elective  part  of  the  national  organization.  With 
respect  to  the  State  elections,  however,  it  is  an  independent 
agency,  and  works  out  its  own  plans  and  is  resiwnsible  for  the 
outcome.  Inevitably,  though,  the  fortunes  of  the  State  and 
national  tickets  are  bound  together.  So  the  State  and  National 
Committees  work  in  harmony,  as  a  usual  thing,  to  their  mutual 
benefit. 

There  is  a  good  deal  of  variation  in  the  composition  and  powers 
of  the  State  committees  in  the  difTerent  States.  In  apportion- 
ing membershi|)  on  the  committee,  difTerent  j^ractices  are  ob- 
served. Various  units  of  rei)resentation  are  used,  the  congres- 
sional district,  the  county,  the  legislative  district,  the  judicial 
flistrict,  anfl  the  town.  In  some  cases  a  mi.xed  basis  is  used.' 
[n  most  cases  the  committees  are  made  up  of  representatives 
from  either  the  congressional  districts  or  the  counties.  As  a 
rule  the  ai)portioiimcnt  of  members  is  based  on  geographical 
considerations  and  not  on  the  iminbcr  of  party  adherents  within 

«  Mcrriarii,  ('.  i:,,  I'olitual  Siinur  Qiinrlrrly,  XIX,  p.  224. 


PARTY  MACHINERY  AND  METHODS  —  STATE    221 

a  district.  In  size,  also,  there  is  great  lack  of  uniformity.  At 
least  five  State  committees  have  a  hundred  or  more  members, 
while  two  have  only  eleven.  They  serve  for  limited  terms, 
in  most  cases  two  years.  The  variation  ranges,  however,  from 
one  to  four  years.  The  terms  coincide,  as  a  rule,  with  those  of 
the  State  officers.  In  general  the  members  of  the  State  com- 
mittee are  chosen  according  to  the  plan  followed  in  the  elec- 
tion of  the  National  Committee.  In  the  case  of  the  latter  the 
delegates  to  the  national  convention  from  the  various  States 
choose  their  respective  committeemen ;  in  the  case  of  the 
former,  the  delegates  to  the  State  convention  from  the  various 
districts  or  areas  to  be  represented  choose  their  respective  com- 
mitteemen. At  a  separate  caucus  of  the  delegates  from  each 
district  the  selection  is  made  and  reported  to  the  State  con- 
vention at  the  proper  time.  A  different  practice  must  be 
observed,  of  course,  if  through  direct  primary  legislation  the 
State  convention  is  abolished.  In  Wisconsin,  where  this  has 
been  done,  party  committeemen  are  chosen  at  a  meeting  of 
the  party  nominees  for  the  various  State  offices  and  for  seats 
in  the  State  legislature.  The  prevailing  practice  in  the  States 
with  direct  primaries,  however,  is  to  retain  the  State  convention, 
though  with  greatly  limited  powers,  and  at  this  the  party  com- 
mittee is  chosen  in  the  manner  outlined.  In  some  States  where 
the  county  is  the  unit  of  representation,  the  central  committee 
is  chosen  by  the  local  county  authorities.  Vacancies  in  the 
State  committee  are  usually  filled  by  the  remaining  members, 
although  there  are  several  States  where  this  is  not  true. 

The  powers  and  duties  of  the  State  committee  are  similar 
to  those  of  the  National  Committee,  though  in  a  much  more 
limited  field.  They  have  to  do  with  the  holding  of  the  State 
convention,  with  the  management  of  the  election  campaign, 
and  the  building  up  and  nurturing  of  the  party's  strength  in 
ail  parts  of  the  State.  In  the  matter  of  the  convention,  the 
committee  decides  upon  the  time  and  place,  issues  the  formal 
call,  fixes  the  ratio  of  representation  among  the  districts  from 
which  delegates  are  to  be  chosen,  selects  the  convention's 
temporary  officers,  passes  upon  contests  among  rival  delega- 
tions in  making  up  the  temporary  roll,  and  makes  all  necessary 
arrangements  for  the  convention's  needs  and  convenience.  As 
with  the  national  organization,  this  is  all  done  by  the  committee 


222  COMPAR.'\TIVE   FREE    GOVERNMENT 

which  is  about  to  retire  from  power.  During  the  time  the 
convention  is  in  session  the  committee's  powers  are  suspended. 
This  convention's  organization  and  procedure  is  practically- 
identical  with  that  of  the  national  convention  already  described. 

The  new  State  committee,  upon  its  election,  organizes  at 
once  by  choosing  its  officers.  There  are  always  a  chairman, 
a  secretary,  and  a  treasurer;  sometimes  other  officers  are 
appointed,  such  as  vice  chairman  and  scrgeant-at-arms.  The 
chairman  is  general  director  of  the  committee  and  its  work, 
and,  as  with  the  national  chairman,  a  great  deal  depends  upon 
his  skill,  executive  abihty,  and  understanding  of  poUtical  con- 
ditions and  forces.  The  work  of  planning  for  the  election 
campaign  that  is  just  opening  begins  at  once.  To  enable  the 
committee  to  conduct  the  campaign  more  effectually,  various 
subcommittees  are  appointed.  These  usually  include  an  execu- 
tive or  campaign  committee  of  which  the  State  chairman  is 
the  head,  a  finance  committee  whose  duty  it  is  to  raise  money 
for  the  campaign,  a  committee  in  charge  of  the  speakers'  bureau, 
and  a  committee  in  charge  of  the  literary  or  publicity  bureau. 
Sometimes  the  latter  two  are  combined.  Frequently  an  audit- 
ing committee  is  appointed  to  check  up  all  financial  transac- 
tions. The  most  important  officers,  of  course,  are  the  chairman 
and  the  secretary.  The  campaign  duties  of  the  committee  are 
similar  to  those  of  the  National  Committee.  It  raises  funds 
for  its  own  use  and  the  use  of  local  committees  where  most 
needed,  prepares  and  sends  out  campaign  literature  of  all  kinds, 
including  that  received  from  the  National  Committee,  arranges 
for  political  meetings  and  assigns  the  speakers,  holds  confer- 
ences with  candidates  and  party  workers,  and  does  whatever 
it  thinks  will  contribute  to  a  party  victory.  At  all  times  it 
must  keep  in  close  touch  with  the  local  committees  and  parly 
workers.  Without  the  aid  of  these  its  plans  could  not  be 
carried  out.  After  all,  it  is  only  a  kind  of  general  staff  directing 
the  State  party  army.  Without  the  subordinate  officers  and 
organizations  it  is  hcl[)less. 

The  County  Central  Committee.  —  Below  the  State  committee, 
and  giving  the  latter  its  chief  support,  stands  the  County  Central 
Committee  —  one  of  the  most  useful  parts  of  the  whole  jiarty 
organization.  In  size  and  manner  of  election  the  county  com- 
mittees  vary   greatly   in   dillerent   Stales.     A    typical    county 


PARTY  MACHINERY  AND   METHODS  —  STATE        223 

committee  in  a  rural  county  is  one  made  up  of  one  representa- 
tive from  each  townsliip  into  which  the  county  is  divided. 
Where  the  county  contains  a  city  of  the  lower  rank,  yet  large 
enough  to  be  divided  into  wards,  a  representative  from  each 
ward  is  also  upon  the  committee.  In  the  large  cities  where 
the  wards  are  divided  into  precincts,  each  precinct  has  its 
committeeman.  In  some  States  members  of  the  county  com- 
mittee are  chosen  at  a  county  convention  composed  of  delegates 
from  the  townships  and  other  election  precincts  of  the  county. 
In  others  the  committeemen  are  chosen  at  the  township,  ward, 
or  precinct  caucuses.  And  in  still  others,  where  the  direct 
primary  has  been  adopted,  members  of  the  county  committee 
are  elected  at  the  polls  by  the  party  members,  at  the  time  party 
candidates  are  nominated  for  the  various  public  offices.  So 
there  is  great  variety  in  the  manner  of  its  election. 

The  powers  of  the  county  committees  are  also  lacking  in 
uniformity.  In  some  States  their  powers  have  never  been 
defined  by  party  authority  and  are  therefore  vague  and  in- 
definite. In  other  States,  specific  rules  have  been  adopted  in 
which  the  powers  of  the  committee  are  clearly  stated  and  their 
exact  relationship  to  the  State  organization  established.  In 
some  instances  the  county  committee  becomes  the  "  ring  "  in 
control  of  the  local  party  and  practically  dictates  what  it  shall 
do.  With  respect  to  the  duties  of  county  committees  there 
is  rather  widespread  agreement.  Their  general  purpose  — 
to  quote  from  the  rules  governing  the  Democratic  county  com- 
mittee in  the  County  of  New  York  —  is  to  "  have  the  care  of 
the  interests  and  be  charged  with  the  administration  of  the 
affairs  of  the  party  in  the  County,  and  with  the  promotion  of 
measures  for  the  harmony,  efficiency  and  success  of  the  party." 
The  county  committee  is  supposed  never  to  become  inactive ; 
it  is  always  to  be  on  the  alert  for  chances  to  strengthen  its 
party  for  the  struggles  that  are  always  coming.  Of  course, 
in  the  heat  of  a  campaign,  its  work  is  more  urgent  and  more 
laborious  than  during  the  periods  intervening  between  elec- 
tions. It  is  then  that  the  efficiency  and  zeal  of  its  members 
are  put  to  the  test.  It  is  through  them  that  the  individual 
voter  comes  in  contact  with  the  party  organization.  Each 
member  is  usually  expected  to  poll  his  precinct  —  that  is, 
ascertain  the  sentiment  of  each  voter  —  at  least  once  during 


224  COMPARATIVE   FREE   GOVERNMENT 

the  campaign.  Sometimes  in  doubtful  States  and  districts 
this  is  done  several  times  in  the  course  of  the  campaign  to 
enable  the  party  leaders  to  plan  and  work  to  the  best  purpose. 
The  county  committee  carries  out  the  instructions  of  the  State 
committee,  and  attends  to  many  details  intrusted  to  it.  It 
is  expected  to  raise  money  for  use  in  its  own  county,  to  em- 
ploy speakers  and  arrange  for  political  meetings  or  "  rallies," 
to  distribute  the  campaign  literature  sent  to  it  by  the  State 
committee,  to  stir  party  workers  who  are  not  on  committees  to 
activity,  to  confer  with  candidates  and  help  them  come  in 
contact  with  local  leaders  and  the  voters,  to  see  that  all  the 
party  members  are  properly  registered,  where  registration  is 
required,  to  appoint  watchers  at  the  polls  where  this  is  neces- 
sary, and  do  many  other  things  to  promote  the  party's  success. 
Above  all,  it  is  the  business  of  the  committee  to  see  that  the 
full  party  vote  is  polled  on  election  day.  Each  committeeman 
is  responsible  for  his  own  precinct  and  to  "  get  out  the  vote  " 
is  one  of  his  chief  aims  as  well  as,  oftentimes,  one  of  his  most 
difTicult  tasks.  The  work  of  the  county  committee,  in  all  of 
its  phases,  is  vital  to  the  success  of  the  party,  and  must  be  clearly 
understood  in  order  to  comprehend  fully  the  part  which  organiza- 
tion plays  in  party  politics. 

There  arc  still  other  committees  in  this  complex  system  which 
have  not  been  mentioned  as  yet.  There  is  likely  to  be  a  com- 
mittee or  committeeman,  in  fact,  in  each  election  district,  no 
matter  how  small  it  may  be.  The  committees  in  mind  here, 
though,  are  the  congressional,  judicial,  and  senatorial  district 
cc^mmittees  which  are  found  in  most  States.  Though  ser\'ing 
larger  districts  than  the  county,  these  committees  are  ordinarily 
of  less  importance,  however,  than  the  county  committees.  They 
are  often  more  nominal  than  real.  The  effective  campaign  work 
is  done  by  the  county  committees.  In  fact,  these  other  com- 
mittees are  frecjuently  made  up  of  county  committeemen,  — 
one  member  from  each  county  committee  in  the  district.  The 
committees  which  carry  the  burden  of  a  i)residential  campaign 
are  the  National,  State,  and  county  committees.  In  a  strictly 
Stale  campaign  it  is  the  State  and  the  county  committees  alone 
which  wage  the  fight. 

Congressional  Campaign  Committee.  —  There  remains  to  be 
described  one  other  party  committee  which  is  of  unusual  in- 


PARTY  MACHINERY  AND  METHODS  —  STATE    225 

terest.  This  is  the  Congressional  Campaign  Committee.  Since 
its  work  is  national  in  scope,  having  to  do  with  the  election  of 
members  of  Congress,  it  might  properly  have  been  described 
in  connection  with  the  National  Committee,  whose  ally  it  is. 
But  there  is  a  difference  between  the  Congressional  Committee 
and  the  National  Committee  as  well  as  the  others  which  have 
been  mentioned,  which  warranted  passing  it  over  for  the  mo- 
ment. The  National,  State,  and  county  committees  are  of- 
ficial party  institutions,  created  by  proper  party  authority 
and  maintained  according  to  established  party  usages.  They 
are  officially  recognized  as  the  party's  agents.  The  Congres- 
sional Campaign  Committee,  on  the  other  hand,  is  not  an 
official  party  committee.  The  party  never  estabhshed  it  and 
does  not  maintain  it,  although,  for  the  most  part,  it  meets 
with  cordial  party  approval.  It  is  simply  an  organization 
set  up  and  maintained  by  party  members  who  have  seats 
in  Congress;  and,  it  might  be  added,  who  want  to  retain 
those  seats.  The  nature  of  its  work  and  the  place  it  holds 
in  the  party  organization  are  better  understood  by  noting 
the  manner  in  which  it  came  into  being  and  how  it  is  per- 
petuated. 

The  Congressional  Committee  is  not  an  old  institution,  as 
political  institutions  go,  although  it  has  been  in  existence  for 
a  number  of  years,  and  both  parties  have  adopted  it.  The 
first  one  came  into  existence  in  1866  and  was  the  direct  prod- 
uct of  the  sharp  controversy  that  was  on  at  that  time  between 
the  Republicans  in  Congress  and  President  Johnson.  The 
National  Committee  was  under  the  domination  of  the  Presi- 
dent, as  it  usually,  though  not  always,  is.  The  Republican 
congressmen  were  unwilling  to  trust  their  political  fortunes, 
when  they  came  up  for  reelection,  to  the  National  Committee. 
As  a  resultant  of  this  state  of  mind  they  formed  a  committee 
of  their  own,  made  up  from  their  own  number,  to  take  charge 
of  the  congressional  campaign  of  1866.  The  results  were  en- 
tirely satisfactory.  The  Republicans  retained  control  of  the 
House  of  Representatives,  in  spite  of  the  President's  efforts 
to  oust  them  through  the  use  of  patronage. 

It  was  seen  at  once  that  the  Republicans  had  brought  into 
service  a  highly  useful  party  agency.  It  became  a  regular 
part  of  the  Republican  organization  and  was  soon  after  adopted 
Q 


2  26  COMPARATIVE   FREE   GOVERNMENT 

by  the  Democrats.  Since  that  time  both  parties  have  kept 
their  Congressional  Committees  organized  and  have  looked  to 
them  for  direction  in  the  congressional  contests.  There  can 
be  no  doubt  that  the  parties  have  been  wise  in  maintaining 
these  committees,  although  they  are  not  free  from  valid  criti- 
cisms. There  is  need  for  an  agency  of  this  kind,  particularly  in 
the  so-called  "  off-year  "  elections,  when  the  regular  National 
Committee,  as  has  been  pointed  out,  is  in  a  state  of  compara- 
tive inaction.  The  National  Committee,  as  a  campaign  com- 
mittee, is  concerned  with  presidential  elections.  Yet  the 
election  of  a  new  House  of  Representatives  midway  in  the  presi- 
dential term  is  a  matter  of  vital  concern  to  both  parties,  and 
particularly  to  the  party  in  power.  The  need  for  a  vigorous, 
well-planned,  well-conducted  campaign  is  apparent.  The 
Congressional  Committee  supplies  this  need,  and  is  without 
doubt  a  valuable  adjunct  to  the  regular  party  organization. 
Only  a  little  less  important,  however,  is  its  work  in  the  presi- 
dential years.  The  congressional  elections  must  be  looked 
after  as  in  the  off  years,  the  only  difference  being  that  in  the 
presidential  years  the  Congressional  Committee  acts  as  the 
ally  of  the  National  Committee  and  in  general  does  its  work 
under  the  latter's  supervision. 

The  methods  of  the  Congressional  Committee  are  similar  to 
those  employed  by  the  National  Committee  in  the  presidential 
campaigns.  It  ])repares  a  campaign  textbook  for  the  use  of 
its  speakers;  sends  out  immense  quantities  of  printed  matter 
—  a  good  deal  of  this  at  government  expense,  under  the  frank- 
ing privilege  enjoyed  by  congressmen ;  raises  money  necessary 
for  the  maintenance  of  committee  headquarters,  the  payment 
of  bills  for  printing  and  transportation,  the  hiring  of  speakers, 
and  the  discharge  of  all  the  many  other  financial  obligations 
incurred  during  a  campaign ;  and  like  all  campaign  committees 
I)erforms  a  multitude  of  exacting  duties.  It  concentrates  its 
work  in  the  douluful  districts,  just  as  the  National  Committee 
centers  its  attention  upon  the  doubtful  States.  It  works  in 
conjunction  with  the  various  local  committees  in  the  different 
States  and  seeks  in  every  way  possible  to  strengthen  the  local 
organizations  and  hold  the  party's  forces  in  line  for  its  candi- 
dates. To  do  this  work  successfully,  the  committee  must 
necessarily  closely  study   local   conditions  and   keep  in   touch 


PARTY  MACHINERY  AND  METHODS  —  STATE    227 

with  local  party  leaders.  The  opportunity  of  the  committee 
thus  to  influence  party  conduct  is  very  great. 

The  Republican  and  Democratic  committees  differ  somewhat 
in  their  organization.  Each  committee  is  reorganized  every 
two  years,  at  the  beginning  of  a  new  Congress.  The  Republican 
committee  is  chosen  at  a  joint  caucus  of  the  members  of  both 
houses.  Each  State  and  Territory  that  is  represented  in  Con- 
gress by  Republicans  has  one  representative  on  the  committee. 
States  that  have  no  representatives  in  Congress  are  deprived 
of  committee  representation.  If  a  State  has  only  one  Repub- 
lican congressman,  he  serves  upon  the  Congressional  Committee. 
Senators  may  be  members,  although  there  is  no  requirement 
that  they  shall  be.  The  practice,  however,  is  to  have  the 
Senate  represented. 

Upon  the  Democratic  committee  each  State  and  Territory 
is  represented  whether  it  has  representation  in  Congress  or 
not.  If  a  State  has  no  Democratic  Representative,  some 
well-known  party  worker  in  that  State  is  selected  to  serve 
on  the  committee.  The  Democratic  committee  is  not  chosen 
at  a  joint  caucus,  as  is  the  Republican  committee,  but  the 
Democratic  members  of  each  house  hold  their  own  caucus 
and  appoint  their  representatives.  The  Senate  always  has 
nine  members  on  the  committee. 

The  efficiency  of  the  Congressional  Committee  as  a  strict 
campaign  agency  is  beyond  dispute ;  it  challenges  admiration, 
in  fact.  Yet  it  is  not  looked  upon  with  absolute  approval. 
Some  of  its  m.ethods,  in  fact,  have  been  subjected  to  the  strong- 
est criticism.  Particularly  has  criticism  been  directed  to  its 
practice  of  raising  large  campaign  funds  from  individuals  who 
have  or  may  have  a  special  interest  in  legislation  that  is  to  come 
before  Congress.  The  charge  is  made  that  members  of  Congress 
in  this  way  place  themselves  under  such  ol^ligation  to  the  finan- 
cial backers  of  their  campaigns  that  they  cannot  pass  unbiased 
judgments  upon  questions  of  legislation  which  affect  the  in- 
terests of  their  benefactors.  This  feeling  has  grown  so  strong 
in  recent  years  that  a  demand  has  sprung  up  for  the  abolition 
of  the  Congressional  Committee,  —  the  view  being  taken  that 
the  regular  party  committees  are  fully  capable  of  directing  all 
party  campaigns.  That  there  is  merit  in  the  criticism  noted 
must  be  granted  by  any  one  familiar  with  American  politics. 


2  28  COMPARATIVE   FREE   GOVERNMENT 

The  big  business  interests  of  the  country  have  been  strongly 
represented  in  the  Congress  and  there  is  abundant  reason  to 
believe  that  financial  contributions  to  the  Congressional  Cam- 
paign Committees  have  had  somewhat  to  do  with  that  fact. 
It  seems  reasonably  safe  to  believe  that  some  of  the  committee's 
methods  will  be  altered.  The  public  welfare  demands  that 
the  Congressional  Committees,  if  they  are  retained  at  all,  shall 
not  place  the  members  of  Congress  under  obligations  to  business 
and  corporate  interests  which  may  be  the  subject  of  congres- 
sional legislation. 

Another  comment  upon  the  Congressional  Committee  which 
should  be  made  involves  its  relation  to  the  policy  or  platform 
of  its  party.  This  is  especially  pertinent  at  times  when  fac- 
tional differences  are  rife.  Is  the  work  of  the  committee  to 
be  affected  in  any  way  by  these  factional  troubles  ?  Is  it,  as  a 
committee,  permitted  to  take  sides?  Does  it  have  the  right 
to  pass  judgment  upon,  or  help  determine  in  an  official  way, 
what  the  party  policy  or  platform  shall  be?  A  case  in  point 
was  the  attitude  of  the  Republican  committee  in  1910,  when 
the  insurgent  movement  among  Republicans  in  Congress  was 
at  its  height.  The  Congressional  Committee  was  controlled 
by  the  stalwarts  or  regulars,  and  its  influence  was  turned  against 
the  insurgents.  Refusal  of  aid  to  insurgent  nominees  was 
threatened.     Was  the  committee  acting  within  its  powers? 

There  is  no  doubt  that  this  attitude  was  contrary  to  the 
accepted  understanding.  Traditionally  the  Congressional  Com- 
mittee has  nothing  to  do  with  the  formulation  of  the  party  plat- 
form, not  even  so  much  as  has  the  National  Committee.  Both 
of  these  committees  are  executive  party  institutions.  It  is 
their  business  to  manage  election  campaigns  and  leave  to  the 
regular  party  conventions  the  task  of  a(l()()ting  platforms  and 
labeling  candidates.  It  is  to  be  remembered  that  tiie  Con- 
gressional Committee  was  not  created  by,  and  is  not  repre- 
sentative of  the  party  voters,  but  is  the  creation  and  agent  of 
representatives  of  the  party  voters  in  the  national  legislature. 
The  interests  of  the  voters  and  their  representalives  are  not 
necessarily  identical.  Moreover,  if  representative  government 
is  to  be  more  than  a  mere  name,  it  is  the  business  of  the  repre- 
sentatives to  carry  out  the  public  or  the  party  will.  It  is  not 
a  part  of  their  function  to  say  what  that  will  shall  be.     The 


PARTY  MACHINERY  AND   METHODS  —  STATE         229 

Congressional  Committee,  therefore,  is  without  authority  to 
say  what  is  and  what  is  not  the  party  faith.  In  its  own  proper 
sphere  of  action,  it  is  a  useful,  efficient  party  instrument.  But 
that  sphere  is  limited  to  the  work  of  conducting  congressional 
election  campaigns ;  it  does  not  include  the  power  to  originate 
party  policies  or  to  judge  of  party  orthodoxy. 

Party  System  Far  from  Perfect.  —  Any  attempt  to  describe 
the  American  party  organization  would  be  very  incomplete 
and  give  a  decidedly  erroneous  impression,  which  did  not  make 
it  clear  that  the  system  in  practice  is  full  of  defects  and  gives 
rise  to  many  serious  problems.  The  desire  of  party  managers 
to  win  elections  leads  to  many  questionable  practices  and  fre- 
quently to  flagrant  corruption.  Falsification  of  the  registra- 
tion lists,  bribery  of  voters,  repeating,  "  stuffing  "  the  ballot 
box,  tampering  with  the  election  returns,  and  other  corrupt 
acts  are  things  of  rather  frequent  occurrence.  This  is  especially 
the  case  in  some  of  the  large  cities  where  the  legitimate  party 
organization  has  degenerated  into  a  corrupt  political  ring.  It 
would  be  far  from  the  truth,  however,  to  conclude  that  such 
evil  practices  characterize  the  work  of  all  the  party  committees. 
It  is  probably  true  that  in  no  other  country  has  there  been  a 
state  of  political-  corruption  and  viciousness  that  measures 
down  to  the  outrageous  conditions  which  have  at  times  been 
exposed  in  certain  American  cities ;  but,  without  doubt,  it 
is  equally  true  that  in  no  other  country  is  there  more  of  partisan 
struggle  and  political  strife  that  is  free  from  improper  and  illegit- 
imate conduct.  Political  conditions  found  in  some  cities  are 
not  typical  of  the  whole  country,  —  a  fact  which  all  students 
of  American  politics,  and  foreign  students  especially,  should 
keep  clearly  in  mind.  The  great  bulk  of  the  activity  of  party 
committees  is  not  subject  to  criticism  from  the  standpoint  of 
dishonesty  and  corruption.  It  is  partisan,  of  course,  but  not 
crooked. 

It  remains  true,  however,  that  the  party  system  is  far  from 
perfect.  The  complicated  party  machinery  has  made  it  easy 
for  the  political  boss  and  the  political  ring  to  develop.  The 
delegate  conventions,  particularly,  have  furnished  o{)portunity 
for  boss  manipulation.  The  control  of  the  party  machinery 
has  too  often  meant  the  control  of  the  party  itself.  The  party 
committees  are  supposed  to  be  the  agents,  the  servants,  of  the 


230  COMPAR.\TIYE  FREE   GOVERNMENT 

party  and  to  be  responsible  to  the  party  voters  from  whom  their 
power  comes;  but  too  frequently  they  have  tried  to  be  the 
masters  of  the  party  and  have  ignored  their  responsibility  to 
the  voters.  As  a  consequence  the  party  will  has  often  been 
thwarted.  In  so  far  as  this  is  a  fact,  true  party  government 
does  not  exist,  for  the  true  political  party  is  merely  an  organ 
for  the  expression  of  public  opinion.  The  boss  and  the  ring 
have  no  place  in  the  true  political  party.  This  fact  is  coming 
to  be  understood  by  the  American  people,  in  whom  the  spirit 
of  genuine  self-government  is  more  alive  to-day  than  ever 
before.  A  new,  regenerated,  democratized  party  system  is 
being  developed. 

REFERENCES 

Beard.     American  Government  and  Politics,  Edition  1914,  Chap.  XXX. 
Bryce.     The  American  Commonwealth,  Edition  1910,  Vol.  II,  Chaps.  LIX 

to  LXIII  inclusive. 
Macy.     Party  Organization  and  Machinery,  Chaps.  \'III  to  X\'II  inclusive. 
Merriam.     Primary  Elections. 
Merriam.     "State  Central  Committees,"  Political  Science  Quarterly,  XIX, 

224  (1904). 
OsTROGORSKi.     Democracy  and  the  Party  System  in  the  United  States,  Chaps. 

XI,  XII. 
Ray.     An  Introduction  to  Political  Parties  and  Practical  Politics,  Chaps.  IV, 

V,  VI,  VII,  XVI. 
WOODBURN.     Political  Parties  and  Party  Problems   in  the   United  States, 

Chaps.  XVI,  XVII,  XVIII. 


CHAPTER  XVIII 

The  Federal  Courts  —  Constitutional  Status  and 
Development 

A  FACT  to  be  kept  constantly  in  mind  in  the  study  of  Ameri- 
can government  is  that  to  a  large  extent  the  government  is  the 
result  of  conscious  action,  of  deliberate  choice.  This  involved, 
on  the  part  of  its  founders,  not  only  the  sifting  of  the  experience 
of  the  Old  and  New  Worlds,  but  the  creation  of  some  new  insti- 
tutions of  government,  —  institutions  that  had  no  counterpart 
in  any  other  nation,  either  contemporaneous  or  of  the  past. 
The  presidency  is  one  of  these.  Another  is  the  federal  judiciary, 
in  which  is  to  be  found  one  of  America's  most  significant  con- 
tributions to  world  experience  with  free  government.  The 
organization  of  the  courts  created  under  the  Constitution  and 
the  Judiciary  Act  of  1789,  their  development,  work,  and  status 
in  the  government  system  are  the  subjects  for  discussion  in 
this  chapter. 

The  provision  of  the  Constitution  with  reference  to  the  or- 
ganization of  federal  courts  is  very  meager  and  indefinite.  The 
sole  authorization  of  a  court  system  is  contained  in  a  single 
sentence,  found  in  Section  i,  Article  III:  "  The  judicial  power 
of  the  United  States  shall  be  vested  in  one  Supreme  Court  and 
in  such  inferior  courts  as  the  Congress  may  from  time  to  time 
ordain  and  establish."  The  other  sentence  in  Section  i  relates 
to  the  term  of  ofiicc  and  compensation  of  the  judges,  and  the 
remaining  parts  of  the  Article,  with  great  brevity,  deal  with 
the  jurisdiction  of  the  courts,  trial  by  jury,  and  the  definition 
and  punishment  of  the  crime  of  treason.  A  considerably  smaller 
proportion  of  the  Constitution  is  devoted  to  the  judiciary  than 
to  either  of  the  other  coordinate  branches  of  the  government. 
This  does  not  mean,  however,  that  there  was  less  of  forethought 
and  careful  consideration  concerning  the  judiciary  than  the 
other  departments.    The  fact  is  that  the  organization  of  the 

231 


232  COMPARATIVE   FREE   GOVERNMENT 

courts,  and  particularly  the  question  of  their  jurisdiction,  and 
their  relation  to  the  other  departments  and  to  the  States  of 
the  Union,  constituted  one  of  the  hardest  and  most  bafifling 
problems  which  the  constitutional  convention  had  to  meet. 
The  brevity  and  indefmiteness  of  the  constitutional  provisions 
are  not  to  be  taken  as  indicative  of  indifference  on  the  part  of 
the  constitution  makers,  or  of  failure  to  appreciate  the  vital 
significance  of  the  judicial  function ;  the  exact  opposite,  in  fact, 
would  be  more  nearly  the  truth.  The  provisions  are  brief, 
the  terms  general,  by  design.  Setting  up  a  new  judicial  or- 
ganization in  addition  to  those  in  existence  in  the  various  States, 
with  jurisdiction  over  the  same  persons  and  the  same  territory 
as  the  latter,  was  a  decidedly  difficult  undertaking.  Too  much 
of  detail  upon  so  delicate  a  matter,  in  view  of  prevailing  popular 
opinions,  might  prove  disastrous  rather  than  helpful.  The 
men  of  the  convention  themselves  were  far  from  being  unanimous 
in  their  views  as  to  the  courts,  and  in  their  differences  accurately 
reflected  the  state  of  the  j^ublic  mind. 

Need  for  Federal  Judiciary.  —  It  was  plain  enough  to  all 
that  some  kind  of  federal  judicial  system  was  needed  and 
must  be  provided  for.  Under  the  Articles  of  Confederation 
there  were  no  courts  to  give  force  to  the  orders  of  Congress  in 
case  of  disobedience  by  either  individuals  or  States.  The 
State  courts  were  under  no  obligation  whatever  to  do  this,  and 
would  not  do  it  unless  it  happened  to  be  their  wish  to  aid  Con- 
gress. This  unsatisfactory  condition  was  generally  conceded 
to  be  one  of  the  grave  weaknesses  of  the  Confederation.  But 
without  some  kind  of  national  courts  the  situation  would  be 
very  much  worse  under  the  new  Constitution  than  under  the 
Confederation.  A  national  legislature  was  to  be  established 
with  wide  powers  and  authority  to  make  its  laws  ai)ply  directly 
to  the  individual  citizen,  and  not  merely  to  the  States  as  was 
the  arrangement  under  the  Articles.  Moreover,  a  strong  execu- 
tive branch  was  to  be  set  up,  charged  with  the  enforcement 
through  its  own  officers  of  the  law  of  Congress.  In  order  to 
l)rotect  the  rights  of  individuals  and  of  the  States,  a  judiciary 
with  ample  power  to  interpret  these  laws  and  apply  I  hem  to 
the  ends  of  justice  was  therefore  imi)eratively  necessary.  One 
of  two  things  could  be  done.  Either  the  State  courts,  already 
in  existence,  could  be  reciuired  to  discharge  this  duty,  or  a  new 


THE  FEDERAL   COURTS  —  CONSTITUTIONAL  STATUS      233 

system  of  federal  courts  could  be  established.  Plainly  it  would 
not  do  to  impose  this  function  upon  the  State  courts,  for  reasons 
that  were  at  once  apparent.  These  reasons  are  succinctly  given 
by  Bryce.  "  State  courts  were  not  fitted  to  deal  with  matters 
of  a  quasi-international  character,  such  as  admiralty  jurisdic- 
tion and  rights  arising  under  treaties.  They  supphed  no  means 
for  deciding  questions  between  different  States.  They  could 
not  be  trusted  to  do  complete  justice  between  their  own  citizens 
and  those  of  another  State.  Being  under  the  control  of  their 
own  State  governments,  they  might  be  forced  to  disregard  any 
Federal  law  which  the  State  disapproved ;  or  even  if  they  ad- 
mitted its  authority,  might  fail  in  the  zeal  or  the  power  to  give 
due  effect  to  it.  And  being  authorities  coordinate  with  and 
independent  of  one  another,  with  no  common  court  of  appeal 
placed  over  them  to  correct  their  errors  or  harmonize  their 
views,  they  would  be  likely  to  interpret  the  Federal  Constitu- 
tion and  statutes  in  different  senses  and  make  the  law  uncertain 
by  the  variety  of  their  conclusions.  These  reasons  pointed 
imperatively  to  the  establishment  of  a  new  tribunal  or  set  of 
tribunals,  altogether  detached  from  the  States,  as  part  of  the 
machinery  of  the  new  government."  ^ 

However,  notwithstanding  the  obvious  necessity  of  setting 
up  federal  courts,  there  was  a  good  deal  of  uncertainty  and 
hesitancy  in  deciding  just  what  these  courts  should  be  and  do. 
As  we  have  seen,  the  final  conclusion  as  formally  stated  in  the 
Constitution  is  by  no  means  specific.  A  good  deal  is  left  to 
legislative  action  and  the  unknown  forces  of  tradition  and 
custom.  Out  of  that  simple  constitutional  authorization  has 
been  erected  a  judicial  organization  which  doubtless  far  tran- 
scends in  size  and  complexity  anything  the  constitution  makers 
anticipated,  and  which  exercises  powers  such  as  the  courts  of 
European  nations  never  possessed. 

Relation  of  Congress  to  the  Courts.  —  It  will  be  noticed  that 
the  only  court  specifically  created  by  the  Constitution  is  the 
Supreme  Court.  The  establishment  of  other  courts  of  inferior 
rank  is  left  wholly  to  Congress.  As  to  the  details  of  the  Supreme 
Court's  organization  and  work  the  Constitution  makes  only 
partial  provisions.     It  is  declared  that  the  judges  of  the  court, 

>  Bryce,  "  The  American  Commonwealth,"  New  and  Revised  Edition,  Vol.  I,  p. 

22Q. 


234       COMPARATIVE  FREE  GOVERNMENT 

as  of  any  inferior  courts  thai  might  be  established,  shall  hold 
office  during  good  behavior,  and  that  they  shall  receive  com- 
pensation for  their  services  which  shall  not  be  diminished 
during  their  continuance  in  office.  It  is  given  original  juris- 
diction in  a  few  cases,  and  appellate  jurisdiction  in  all  others 
that  may  come  before  the  federal  courts,  subject  to  the  regu- 
lations that  may  be  made  by  Congress.  It  is  also  provided 
that  the  members  of  the  court  shall  be  appointed  by  the  Presi- 
dent with  the  approval  of  the  Senate,  and  like  other  civil  of- 
ficers are  subject  to  impeachment.  Nothing  is  said  about  the 
number  of  Supreme  Court  judges,  the  time  of  the  court's  sessions, 
or  the  rules  that  shall  govern  it.  These  matters  are  left  to  Con- 
gress to  determine,  as  is  the  question  of  setting  up  other  judicial 
tribunals. 

It  is  plain  at  a  glance  that  in  spite  of  the  separation  of  powers 
doctrine  which  is  so  fundamental  in  the  United  States  Constitu- 
tion, Congress  has  a  good  deal  to  say  about  the  judiciary. 
Exactly  how  much  power  Congress  has  over  the  court  organiza- 
tion is  a  subject  of  some  dispute.  Clearly  it  cannot  destroy 
the  Supreme  Court,  but  unquestionably  it  could  so  injure  the 
court  by  legislation  as  to  render  it  useless  by  making  il  hope- 
lessly inefficient.  For  example,  in  deciding  upon  the  number 
of  judges,  which  is  always  subject  to  congressional  control, 
Congress  might  make  the  membership  so  large  as  to  interfere 
seriously  with  its  capacity  for  judicial  work.  Again,  while 
Congress  cannot  reduce  the  number  of  judges  by  removing 
them,  except  through  impeachment,  it  can  provide  that  as 
vacancies  occur  through  death  or  resignation  or  removal  after 
impeachment,  such  vacancies  shall  not  be  filled  and  the  judge- 
ships involved  be  abolished.  This  was  done  in  1866  when  the 
number  of  judges  was  reduced  from  ten  to  seven.  This  could 
be  continued  until  only  one  judge  remained,  and  still  the  con- 
stitutional requirement  be  fully  met.  But  one  judge  could 
not  by  any  means  do  the  work  which  devolves  u\n)u  the  Supreme 
Court.  Again,  while  Congress  cannot  diminish  the  salary  of  a 
juflge  during  his  continuance  in  office,  it  clearly  could  provide 
that  as  a  vacancy  in  the  Supreme  Court  occurs,  the  salary  for 
that  particular  judgeshij)  should  be  reduced  to  so  low  a  sum 
as  to  cause  service  on  the  supreme  bench  to  ai)pear  ridiculous 
and  thus  make  jurists  of  stancHng  unwilling  to  accept  appoint- 


THE   FEDERAL   COURTS  —  CONSTITUTIONAL   STATUS      235 

ment.  This  might  be  continued  until  the  character  of  the  whole 
court  would  be  changed.  As  to  the  inferior  courts,  the  power 
of  Congress  would  seem  to  be  even  greater.  While  the  lower 
judges,  like  the  Supreme  Court  justices,  are  secure  in  their 
positions  except  in  cases  of  impeachment,  the  lower  courts 
themselves  can  be  aboHshed.  In  fact  this  was  done  once, 
though  under  rather  exceptional  conditions,  and  opinions 
differ  as  to  the  validity  of  the  act.^  In  1801,  just  before  the 
close  of  President  John  Adams's  administration,  the  Federalists 
provided  for  the  reduction  of  the  Supreme  Court  membership 
from  six  to  five,  in  order  to  prevent  the  in-coming  President, 
Thomas  Jefferson,  from  filling  the  vacancy,  and  created  sixteen 
new  circuit  judgeships.  On  the  last  night  of  his  term.  Presi- 
dent Adams  filled  these  positions  with  partisan  adherents. 
One  of  the  first  things  done  by  the  new  Congress  at  the  begin- 
ning of  Jefferson's  administration  was  to  repeal  the  law  creating 
these  "  midnight  judges,"  and  the  act  never  went  into  effect. 
The  constitutionality  of  this  may  be  questioned,  but  the  re- 
pealing law  was  never  tested  in  the  courts  and  therefore  stands 
as  vaHd.  It  needs  no  further  comment  to  make  plain  that 
by  this  power  to  abolish  the  inferior  courts,  Congress  could 
practically  destroy  the  whole  judicial  system.  That  there  is 
any  danger  of  this,  however,  is  of  course  an  absurdity.  Con- 
gress has  in  a  few  instances  interfered  with  the  courts  for  partisan 
reasons,  and  may  possibly  do  so  again,  but  that  it  will  seek  to 
abolish  the  lower  courts  without  providing  for  other  tribunals 
to  take  their  place,  is  a  supposition  beyond  all  reason.  The 
purpose  of  the  foregoing  statements  is  merely  to  suggest  the 
very  close  relationship  between  the  legislative  and  judicial 
departments  and  some  of  the  things  it  would  be  possible  for 
Congress  to  do  under  the  formal  Constitution.  The  independ- 
ent judiciary,  however,  is  a  thing  of  fact,  notwithstanding  the 
possibiUtics  of  congressional  interference,  and  its  influence  was 
never  greater  than  at  the  present  time. 

Development  of  the  Court  System.  —  Understanding  of  the 
relation  of  the  judiciary  to  Congress,  as  well  as  of  the  actual 
court  organization,  will  be  promoted  by  a  brief  review  of  the 
development  of  the  various  courts  in  the  federal  system.  As 
already  pointed  out,  action  by  Congress  was  necessary  before 

1  Beard,  "American  Government  and  Politics,"  New  and  Revised  Edition,  p.  224. 


236        COMPARATIVE  FREE  GOVERNMENT 

the  judicial  machinery  could  be  set  in  motion.  Even  the 
Supreme  Court,  required  by  the  Constitution,  could  be  nothing 
more  than  a  name  until  Congress  took  the  steps  necessary  to 
make  it  a  reality.  As  for  the  inferior  courts,  they  had  not  even 
a  nominal  existence. 

The  act  by  which  Congress  did  its  part  in  establishing  the 
judicial  organization  is  known  as  the  Judiciary  Act  of  17S9. 
This  became  a  law  on  September  24  of  that  year  and  remained 
operative  until  January  i,  191 2,  when  it  was  superseded  by  a 
new  judicial  code.  Provision  was  made  for  the  organization 
of  the  Supreme  Court  which  was  to  consist  of  one  Chief  Justice 
and  five  Associate  Justices.  The  jurisdiction  of  the  court  was 
regulated  by  extending  its  original  jurisdiction  beyond  that 
provided  for  in  the  Constitution  to  two  classes  of  cases,  and 
giving  it  final  appellate  jurisdiction  in  all  cases.  By  this  act 
the  country  was  divided  into  thirteen  districts,  and  in  each 
of  these  a  District  Court  was  established  with  one  judge,  known 
as  district  judge.  The  jurisdiction  of  this  court  was  deter- 
mined by  giving  it  certain  powers  in  both  civil  and  criminal 
cases.  By  further  provisions  of  the  act  these  districts  were 
grouped  into  three  larger  districts  known  as  circuits.  In  each 
of  these  circuits  a  court  was  created  with  original  jurisdiction 
in  both  civil  and  criminal  causes,  and  with  appellale  jurisdic- 
tion in  a  number  of  cases  arising  in  the  District  Courts  below. 
Separate  Circuit  Court  judges,  however,  were  not  authorized. 
It  was  provided  that  each  of  these  Circuit  Courts  should  be 
composed  of  two  Supreme  Court  justices  and  the  district  judge 
of  the  district  in  which  the  case  at  issue  originated.  The 
Supreme  Court  justices  were  required  to  go  from  district  to 
district  within  their  respective  Circuits  and  hold  court  at  stated 
times  in  conjunction  with  the  various  district  judges.  Appeal, 
where  it  was  allowed,  would  be  from  the  Circuit  Court  to  the 
Supreme  Court. 

This,  in  jjrief,  gives  the  organization  of  tlie  federal  judiciary 
as  it  was  established  in  the  beginning  and  as  it  has  continued 
in  its  fundamentals  to  the  j)resent  time.  The  basic  idea  with 
respect  to  the  inferior  courts  is  the  division  of  the  country  into 
districts,  each  with  a  court  of  its  own,  and  the  grouping  of  the 
districts  into  a  number  of  circuits,  whose  courts  stand  midway 
between   the  District  and   Su])reme  Courts.     'J'he  real  unit  of 


THE   FEDERAL   COURTS  —  CONSTITUTIONAL   STATUS      237 

the  system  of  lower  courts  is  the  district,  and  has  been  from  the 
first.  The  District  Court  is  the  only  federal  court  whose  juris- 
diction is  exclusively  original. 

The  task  of  getting  this  judicial  machinery  in  motion  and 
winning  for  it  a  position  of  favor  in  the  public  mind,  was  natu- 
rally a  difficult  one  which  required  both  patience  and  tact. 
There  was  a  vast  amount  of  suspicion  among  the  people  con- 
cerning the  whole  system,  and  particularly  the  Supreme  Court. 
They  feared  it  and  were  resentful  toward  it.  Considerable 
time  elapsed  before  popular  confidence  in  the  federal  courts 
became  a  fact.  The  story  of  the  growth  of  the  Supreme  Court 
from  an  institution  that  was  surrounded  by  fear  and  distrust, 
and  without  work  to  do,  to  one  with  the  vast  power  and  prestige 
which  it  has  now  long  had,  is  a  story  of  entrancing  interest,  and 
reveals  one  of  the  most  notable  developments  in  the  history  of 
free  government.  The  court  held  its  first  meeting  on  the  first 
Monday  in  February,  1790,  appointed  a  clerk,  and  then  ad- 
journed because  there  was  nothing  for  it  to  do.  The  situation 
at  the  moment  and  the  striking  change  that  has  occurred  since 
then  are  graphically  indicated  by  an  American  lawyer:  "  Not 
a  single  litigant  had  appeared  at  their  bar.  Silence  had  been 
unbroken  by  the  voice  of  counsel  in  argument.  The  table  was 
unburdened  by  the  weight  of  learned  briefs.  No  papers  were 
on  file  with  the  clerk.  Not  a  single  decision,  even  in  embryo, 
existed.  The  judges  were  there ;  but  of  business  there  was 
none.  Not  one  of  the  spectators  of  that  hour,  though  gifted 
with  the  eagle  eye  of  prophecy,  could  have  foreseen  that  out 
of  that  modest  assemblage  of  gentlemen,  unheard  of  and  un- 
thought  of  among  the  tribunals  of  the  earth,  a  court  without  a 
docket,  without  a  record,  wittiout  a  writ,  of  unknown  and  un- 
tried powers,  and  of  undetermined  jurisdiction,  there  would  be 
developed  within  the  space  of  a  single  century  a  court  of  which 
the  ancient  world  could  present  no  model  and  the  modern 
boast  no  parallel;  a  court  whose  decrees,  woven  like  threads 
of  gold  into  the  priceless  and  imperishable  fabric  of  our  con- 
stitutional jurisprudence,  would  bind  in  the  bonds  of  love, 
liberty,  and  law  the  members  of  our  great  Republic.  Nor 
could  they  have  foreseen  that  the  tables  of  Congress  would 
groan  beneath  the  weight  of  petitions  from  all  parts  of  the 
country,  inviting  that  body  to  devise  some  means  for  the  re- 


238  COMPARATIVE   FREE   GOVERNMENT 

lief  of  that  over-burdened  tribunal  whose  litigants  are  now 
doomed  to  stand  in  line  for  a  space  of  more  than  three  years 
before  they  have  a  chance  to  be  heard."  ^ 

The  author  of  these  words  does  not,  in  his  eloquence,  exag- 
gerate the  facts  of  the  case.  It  was  a  most  inauspicious  begin- 
ning for  one  of  the  world's  greatest  political  institutions.  The 
court  was  almost  exclusively  an  appellate  court,  and  its  work 
for  some  time  was  far  from  heavy.  Its  members  traveling  on 
circuit,  however,  were  confronted  by  laborious  and  exacting 
duties.  Transport  facihties  were  meager  at  that  time,  and  the 
work  of  the  judges  was  physically  hard.  Within  four  or  five 
years  the  Supreme  Court's  docket  filled  up  to  such  an  extent 
that  its  members  had  to  be  relieved  of  some  of  their  responsibili- 
ties in  connection  with  the  Circuit  Courts.  In  1793,  Congress 
provided  that  only  one  Supreme  Court  justice  should  be  assigned 
to  each  circuit. 

The  judicial  organization  as  outlined  here  continued  in  force 
until  the  reorganization  act  of  1S69  was  passed  by  Congress. 
Minor  changes,  of  course,  were  made  in  the  meantime,  —  the 
number  of  Supreme  Court  justices  being  increased,  and  addi- 
tional District  Courts  authorized  as  new  States  were  admitted 
to  the  Union  and  the  work  of  the  courts  grew  heavier.  Under 
this  new  law  the  number  of  Circuit  Courts  was  increased  to 
nine  and  a  circuit  judge  in  each  circuit  provided  for.  By  the 
act  of  1789  there  were  Circuit  Courts,  but  no  circuit  judges. 
As  previously  stated,  the  law  of  1801  creating  sixteen  circuit 
judgeships  was  repealed  the  next  year  before  it  went  into  effect. 
By  the  law  of  1869  the  new  circuit  judge  was  given  practically 
the  same  power  as  that  held  by  the  Supreme  Court  justice  as- 
signed to  the  circuit.  It  was  provided  that  the  Circuit  Court 
might  Ije  held  by  the  Supreme  Court  justice,  by  the  circuit 
judge,  or  by  the  district  judge  sitting  alone;  two  or  all  three 
of  these  might  sit  together,  of  course.  The  Supreme  Court 
justice,  however,  was  not  required  to  altcnd  the  Circuit  Court 
more  than  once  in  two  years,  and  even  llien  niiglu  be  ])resent 
for  only  a  day  or  two.     This  was  because  the  Su|)renie  Court 

•  Carson,  Hampton  L.,  "A  History  of  the  Supreme  Court  of  the  United  States." 
Quoted  by  Representative  Kciil)en  f).  Moon,  "Tfic  ReorRanizalion  of  the  I'cderal 
System."  Case  an<l  Comment,  Vol.  iS,  June.  ign.  Ik'(  aiisc  of  the  relief  that  has 
come  from  the  establishment  of  the  Circuit  Courts  of  Appeals,  the  Supreme  Court 
is  not  now  so  far  behind  with  its  work. 


THE   FEDERAL   COURTS  —  CONSTITUTIONAL  STATUS      239 

itself  was  so  burdened  with  work  that  its  members  could  not 
be  spared  much  of  the  time  to  go  on  circuit.  The  Circuit  Court 
had  both  appellate  and  original  jurisdiction,  but  on  account  of 
the  volume  of  business  before  it,  gave  most  of  its  time  to  cases 
on  appeal  from  the  District  Courts.  The  district  judge  might 
be  called  on  to  hold  Circuit  Court,  and  often  did  so,  but  the 
district  judges  had  their  time  well  filled,  as  a  rule,  with  the 
work  of  their  own  District  Courts,  whose  field  steadily  grew 
larger  as  the  country  developed  and  laws  became  more  restric- 
tive. The  system  thus  organized  was  continued  until  1891, 
when  further  modification  was  made  in  connection  with  the 
Circuit  Courts. 

By  the  act  of  1891  Circuit  Courts  of  Appeals  were  created. 
This  was  done  to  relieve  the  Supreme  Court,  which  by  this 
time  was  swamped  by  the  mass  of  work  devolving  upon  it.  It 
was  hopelessly  behind  with  its  docket,  to  the  serious  loss  of  all 
who  might  have  business  before  it.  The  law  of  1891  provided 
a  Circuit  Court  of  Appeals  for  each  of  the  nine  circuits  and  to 
these  courts  was  given  final  jurisdiction  over  a  large  number  of 
cases  which  formerly  went  to  the  Supreme  Court  on  appeal 
from  the  lower  courts.  This  reheved  the  pressure  of  business  on 
the  Supreme  Court  and  added  much  to  its  efficiency.  New 
judges  were  not  provided  for  the  Circuit  Courts  of  Appeals, 
however,  the  work  of  these  courts  devolving  upon  the  judges  of 
the  various  Circuit  Courts,  which  were  continued  as  courts  of 
original  jurisdiction,  their  appellate  powers  being  transferred 
to  the  new  courts.  So,  under  the  law  of  1891,  the  federal 
court  system  consisted  of  the  Supreme  Court,  nine  Circuit 
Courts  of  Appeals,  nine  Circuit  Courts,  and  the  District  Courts, 
seventy-seven  in  number.  The  work  of  the  Supreme  Court 
was  entirely  appellate,  except  in  the  few  cases  where  original 
jurisdiction  was  imposed  on  it  by  the  Constitution ;  that  of  the 
Circuit  Courts  of  Appeals  was  wholly  appellate,  its  jurisdiction 
being  final  in  a  large  number  of  cases ;  and  that  of  the  Circuit 
and  District  Courts  was  exclusively  original. 

The  anomalous  element  in  this  arrangement  was  the  situation 
of  the  Circuit  and  District  Courts.  Both  were  courts  of  original 
jurisdiction,  and  to  a  large  extent  this  was  concurrent.  Each 
had  exclusive  jurisdiction  in  a  few  cases,  but  these  were  com- 
paratively unimportant,  and  for  the  most  part  the  two  courts 


240  COMPARATIVE  FREE   GOVERNMENT 

paralleled  each  other.  In  fact,  as  has  already  been  stated,  the 
district  judge  alone  could  hold  the  Circuit  Court.  Moreover, 
the  circuit  judges  were  required  to  do  the  work  of  the  Circuit 
Courts  of  Appeals.  There  was  thus,  not  only  an  overlapping 
of  jurisdiction,  but  serious  interference  with  the  work  of  each. 
The  result  naturally  was  that  the  Circuit  Court  was  held  more 
and  more  by  the  district  judges,  while  the  circuit  judges  gave 
more  and  more  attention  to  their  duties  on  the  Circuit  Courts 
of  Appeals.  Clearly  further  change  was  necessary;  and  the 
logical  thing  was  to  eliminate  the  Circuit  Court,  which,  though 
an  historic  court  with  an  honorable  record,  had  outlived  its 
usefulness  as  an  independent  tribunal. 

This  reform  was  accomplished  when  the  so-called  Judicial 
Code,  under  which  the  federal  courts  are  now  organized,  was 
passed  by  Congress  on  March  3,  1911,  and  went  into  effect 
January  i,  191 2.  This  act  is  a  thorough  revision  and  codifica- 
tion of  the  laws  relating  to  the  judiciary  and  provides  in  minute 
detail  for  the  entire  judicial  department  of  the  government.^ 
By  the  terms  of  this  law  there  are  three  grades  of  courts  in  the 
regular  system,  —  the  Supreme  Court,  the  Circuit  Courts  of 
Appeals,  and  the  District  Courts.  Two  special  courts  are 
maintained  to  handle  special  cases,  the  Court  of  Claims  and  the 
Court  of  Customs  Appeals.  These  are  courts  of  limited  juris- 
diction and  are  not  looked  upon  as  parts  of  the  regular  system. 
There  is  also  a  complete  judicial  organization  in  the  District  of 
Columbia,  but  its  courts  are  essentially  local  courts,  whose 
jurisdiction  is  almost  entirely  confined  to  cases  arising  within 
the  District.  The  regular  hierarchy  of  courts  consists  of  the 
three  great  courts  that  have  been  named.  Further  description 
of  the  judicial  organization  is  necessary. 

REFERENCES 
([•"or  References,  sec  Chap.  XXI.) 

•  United  States  Statutes  at  Large,  Vol.  36,  I'nrt  I,  |).  1087. 


CHAPTER  XIX 

The  Federal  Courts  —  Present  Organization 

The  Supreme  Court,  with  its  foundation  resting  upon  the 
soHd  rock  of  constitutional  authorization,  stands  at  the  head 
of  the  judicial  system.  It  now  has  nine  members,  one  of  whom 
is  designated  Chief  Justice,  and  presides  over  the  court's  de- 
liberations. The  presence  of  six  justices  is  necessary  for  a 
quorum.  Members  are  appointed  by  the  President,  subject  to 
confirmation  by  the  Senate,  and  hold  ofifice  during  good  behavior. 
They  receive  compensation  as  fixed  by  Congress.  The  Chief 
Justice  now  receives  $15,000  a  year  and  each  Associate  Jus- 
tice, $14,500.  The  Court  is  required  to  hold,  at  the  seat  of 
government,  at  least  one  term  annually,  beginning  on  the 
second  Monday  in  October.  This  usually  continues  until  May 
or  June.  Adjourned  or  special  sessions  may  be  held  whenever 
the  Court  considers  it  necessary.  It  is  authorized  to  appoint 
a  clerk,  a  marshal,  and  a  reporter  of  its  decisions,  and  whatever 
deputies  are  necessary  for  looking  after  its  business.  It  also 
establishes  the  rules  which  govern  its  procedure. 

Work  and  Procedure  of  Supreme  Court.  —  A  large  number 
of  cases  is  always  before  the  Supreme  Court.  These  are  almost 
exclusively  cases  from  the  lower  federal  courts  or  from  the  State 
courts  on  appeal  or  by  writ  of  error.  It  is  only  rarely  that 
the  Supreme  Court  is  called  upon  to  exercise  its  original  powers. 
A  good  deal  of  its  attention  is  occupied  with  questions  of  con- 
stitutional law  and  passing  upon  the  validity  of  legislative  acts, 
either  of  Congress  or  of  the  State  legislatures.  Naturally  this 
is  considered  its  most  important  work.  No  case  will  be  con- 
sidered by  the  Supreme  Court  which  does  not  come  to  it  in  the 
regular  way.  It  will  express  no  opinion  about  cases  that  are 
not  before  it,  and  in  deciding  those  that  are  before  it,  the  Court 
will  regularly  confine  itself  to  ruling  upon  those  points  in  con- 
troversy which  are  essential  to  a  determination  of  the  specific 
R  241 


242  COMPAi-LVTIVE  FREE   GOVERNMENT 

cases  at  issue.  Sometimes  this  rule  has  not  been  observed  and 
the  Court  has  given  expression  to  obiter  dicta,  but  not  often.  It 
is  unwilling  to  decide  more  than  is  absolutely  necessary  to  dis- 
pose of  the  case  at  hand.  Upon  poHtical  questions,  also,  the 
Supreme  Court  refuses  to  give  any  opinion.  It  is  a  court  of 
law  and  confines  itself  to  applying  the  Constitution  and  the 
laws  to  specific  legal  controversies  which  are  brought  to  its 
attention  by  the  regular  legal  processes. 

The  work  of  the  Supreme  Court  is  very  heavy.  On  an 
average,  more  than  five  hundred  cases  come  to  it  every  year. 
For  many  years  its  docket  has  never  been  clear,  in  spite  of  the 
fact  that  from  four  to  five  hundred  decisions  may  be  handed 
down  each  year  in  a  term  of  eight  months.  The  immense 
amount  of  labor  involved  in  this  is  more  clearly  comprehended 
when  the  procedure  of  the  Court  is  kept  in  mind.  Briefs  are 
submitted  by  the  opposing  counsel  in  every  case.  Oral  argu- 
ment in  open  court  is  allowed  unless  the  counsel  waive  the 
privilege.  The  time  allotted  to  each  side  is  usually  one  and  one 
half  hours,  but  in  the  more  important  cases  this  may  be  extended 
by  the  Court.  When  the  arguments  are  completed,  each  of  the 
judges  is  required  to  read  the  record  of  the  case  as  it  has  been 
developed  in  the  courts  below.  This  may  in  some  instances 
involve  the  careful  reading  of  several  thousand  pages.  After 
this  task  has  been  completed  by  each  member  of  the  Court,  a 
conference  is  called  at  which  the  various  points  of  the  case  are 
talked  over  for  the  purpose  of  reaching  a  common  opinion  and 
determining  the  principles  of  law  that  apply.  If  the  judges 
are  agreed  as  to  the  decision  in  the  case,  or  if  five  of  them, 
constituting  a  majority  of  the  Court,  are  agreed,  one  of  them 
is  designated  by  the  Chief  Justice  to  prepare  the  Court's  opinion. 
If  the  Chief  Justice  is  of  the  minority,  however,  the  designation 
of  a  justice  to  prepare  the  majority  opinion  is  left  to  one  of  the 
majority,  usually  the  senior  member.  When  this  is  done  by 
the  member  so  charged,  the  opinion  is  submitted  to  each  of  the 
judges  for  careful  study  and  revision.  If  the  opinion  is  ap- 
})roved  by  the  majority,  the  decision  of  the  Court  is  announced 
at  the  [)roper  lime  and  the  opinion  is  placed  on  record  and 
printed.  It  may  be,  however,  that  some  member  of  the  Court 
does  not  ai)provc  of  the  reasoning  upon  which  the  opinion  is 
based,  although  agreeing  with  the  conclusion  that  is   reached. 


THE  FEDERAL  COURTS  —  PRESENT  ORGANIZATION      243 

In  that  case  he  may  feel  called  on  to  prepare  an  opinion  of  his 
own,  a  "  concurring  opinion  "  in  which  he  reasons  out  the 
conclusion  in  the  way  he  thinks  is  right.  It  may  happen,  in- 
deed, that  several  of  the  justices  feel  impelled  to  give  concurring 
opinions.  On  the  other  hand,  one  or  more  of  the  judges  may 
not  agree  with  the  majority  in  the  decision  of  the  case  and 
prepare  what  is  called  a  "  dissenting  opinion  "  in  which  the 
minority  view  and  the  reasoning  on  which  it  is  based,  are  given 
expression.  Possibly  there  may  be  two  or  more  dissenting 
opinions.  A  good  many  cases  are  settled  by  a  divided  court 
and  not  infrequently  by  a  bare  majority,  as  was  true  of  the 
famous  income  tax  case  of  1895  when  the  Court  stood  five  to 
four.  The  various  dissenting  and  concurring  opinions  are 
printed  in  the  official  reports  together  with  the  majority  opinion. 

It  is  plain  that  this  careful  consideration  of  the  hundreds  of 
cases  that  are  disposed  of  every  year  involves  a  vast  amount  of 
work.  Yet  it  does  not  exhaust  the  duties  of  Supreme  Court 
justices.  Applications  are  numerous  for  various  writs  which 
the  Court  may  issue,  particularly  for  writs  of  error,  a  process  by 
which  the  Supreme  Court  orders  cases  brought  before  it  for  a 
review  of  the  proceedings  and  findings  of  lower  courts.  These 
consume  time  and  energy  and  add  not  a  little  to  the  load  which 
the  Supreme  Court  must  carry.  Sometimes,  in  addition,  special 
duties  must  be  attended  to  by  the  Court,  such  as  revising  the 
rules  of  procedure  which  are  observed  not  only  in  the  Supreme 
Court  itself,  but  also  in  all  of  the  federal  courts.  For  example, 
there  went  into  effect  February  i,  19 13,  a  complete  new  set  of 
equity  rules  which  had  been  carefully  prepared  by  three  of  the 
justices  to  whom  the  work  had  been  delegated. 

The  Supreme  Court  is  a  very  dignified  body,  and  its  sessions 
are  characterized  by  much  formality  and  impressiveness. 
Judicial  robes  are  worn  while  the  Court  is  in  session.  In  solemn 
manner,  with  the  Chief  Justice  leading,  the  members  of  the 
Court  in  the  order  of  seniority  pass  from  the  gowning  room  to 
the  court  chamber,  and  with  court  attendants,  members  of  the 
bar,  and  spectators  standing,  ascend  the  bench  just  as  the  clock 
strikes  the  hour  of  noon,  bow  with  dignity  to  the  attorneys 
present,  and  take  their  seats.  The  court  crier  then  announces 
the  sitting  and  the  work  of  the  session  begins.  Not  only  is  the 
Court  a  body  of  great  dignity,  but  it  is  a  most  honorable  body, 


244  COiMPAR.\TIVE   FREE   GOVERNMENT 

having  the  highest  respect  and  confidence  of  the  Nation  it 
serves.     Where,  in  the  beginning,  it  was  an  object  of  fear  and 
distrust,  it  is  now,  and  long  has  been,  an  object  of  veneration  and 
highest  esteem.     Its  influence,  at  first  nil,  is  now  immeasurable. 
Why  this  is  so  great  is  made  plain  in  the  next  chapter,  which 
deals  with  the  powers  and  jurisdiction  of  the  federal  judiciary. 
Circuit  Court  of  Appeals.  —  The  court  next  below  the  Su- 
preme Court  is  the  Circuit  Court  of  Appeals.     There  is  one  of 
these  courts  in  each  of  the  nine  circuits  into  which  the  United 
States  is  divided. ^     The  number  of  judges  in  the  different  cir- 
cuits varies  from  two  to  four,  according  to  the  business  which 
has  to  be  done.     One  circuit  has  two  judges,  five  circuits  have 
three  judges,  and  three  have  four  judges.     Each  judge  is  re- 
quired to  reside  in  his  own  circuit  and  receives  a  salary  of  seven 
thousand  dollars  a  year.     One  member  of  the  Supreme  Court 
is  allotted  to  each  circuit.     The  Supreme  Court   justices   and 
the  various  district  judges  are  competent  to  sit  as  judges  of  the 
Circuit  Court  of  Appeals  within  their  respective  circuits.     In 
practice,  the  Supreme  Court  justices  do  not  take  part  in  the 
work  of  this  court,  their  time  being  more  than  filled  with  their 
duties  on  the  higher  court.     In  case  the  full  membership  of  a 
Circuit  Court  of  Appeals  is  not  present  at  any  term,  the  law 
requires  that  one  or  more  of  the  district  judges  within  the  cir- 
cuit shall  be  called  in  to  make  up  a  full  bench.     The  district 
judges,  however,  are  not  permitted  to  sit  in  cases  which  they 
have  previously  tried,  or  heard  in  the  District  Court.     These 
courts  are  required  to  hold  several  terms  annually,  sitting  in 
(liffLrent  cities  of  the  circuits,  some  of  which  are  specifically 
provided  for  in  the  Judicial  Code.     Each  court  apiwints  a  clerk 
whose  duty  it  is  to  keej)  a  proper  record  of  its  proceedings. 
The  United  States  marshals  in  the  several  districts  where  the 
court  is  held  are  the  marshals  of  the  Circuit  Court  of  Ai)peals. 
It  is  their  duty  to  attend  the  sessions  of  the  court,  serve  and 

•  The  circuits  arc  made  up  as  follows:  The  first  circuit,  with  tlircc  judges,  in- 
cludes the  Stales  of  Rhode  Island,  Massachusetts,  New  Hampshire,  and  Maine; 
the  second  circuit  with  four  judKes,  Vermont,  ('onnc(ti(Ut.  and  New  N'ork  ;  the  third 
with  three  judges,  Pennsylvania,  New  Jersey,  and  Delaware;  the  fourth,  with  two 
ju.lKcs,  Marylan.l,  Virk'inia,  West  VirKJuia,  North  Carolina,  and  South  Carolina; 
the  fifth,  with  three  judges,  C.corKJa,  Florida,  Alahama,  Mississipjii,  Louisiana,  and 
Texas;  the  sixth,  with  three  judges,  Ohio.  Michigan,  Kentucky,  and  Tennessee;  the 
seventh,  with  four  jurlces,  Indiana.  Wisconsin,  and  Illinois;  the  eiRhth,  with  four 
judges.  Nebraska,  Minnesota,  Iowa,  Missouri,   Kansas,  Arkansas,  Colorado,  Wyo- 


THE   FEDERAL   COURTS  —  PRESENT  ORGANIZATION      245 

execute  its  orders,  and  have  charge  of  the  property  of  the 
United  States  used  by  the  court.  As  previously  stated,  the 
purpose  in  view  in  establishing  the  Circuit  Courts  of  Appeals 
was  to  relieve  the  Supreme  Court  of  a  part  of  its  excessively 
heavy  labors  as  an  appellate  court  of  highest  authority.  They 
were  therefore  given  final  jurisdiction  in  a  large  number  of  cases. 
This  has  worked  to  the  advantage  of  the  higher  court,  but 
because  the  Supreme  Court  is  made  the  final  arbiter  in  all 
cases  involving  the  constitutionality  of  laws,  both  State  and 
national,  and  because  of  the  ease  with  which  the  question  of 
constitutionality  may  be  raised,  the  relief  afforded  has  not 
been  as  great  as  was  desired.^  Notwithstanding  this  fact, 
however,  the  Circuit  Courts  of  Appeals  are  tribunals  of  very 
high  standing  and  great  powers,  as  is  shown  later  in  the  dis- 
cussion of  their  jurisdiction. 

The  District  Court.  —  Below  the  Circuit  Court  of  Appeals, 
and  at  the  bottom  of  the  list,  stands  the  District  Court.  This 
court  was  established  by  the  Judiciary  Act  of  1789  and  has 
held  its  position  without  a  break,  steadily  gaining  in  influence 
and  power.  The  country  is  divided  into  eighty  districts  and  in 
each  of  these  there  is  a  District  Court.  Each  State  constitutes 
at  least  one  district.  Some  of  the  larger  and  more  populous 
States  are  divided  into  two  or  more  districts,  Texas  and  New 
York  each  having  four.  As  a  rule,  each  district  has  at  least 
one  judge,  though  in  a  few  instances  one  judge  serves  two  dis- 
tricts. In  several  of  the  districts  an  additional  judge  is  pro- 
vided for  in  the  law,  the  southern  district  of  New  York  being 
allowed  three  additional  judges.  Each  one  is  required  by  law 
to  reside  in  the  district  or  in  one  of  the  districts  for  which  he  is 
appointed.  Failure  to  comply  with  this  provision  is  made  a 
high  misdemeanor,  an  offense  which  subjects  the  offending 
judge  to  impeachment.  The  salary  of  district  judges  is  fixed 
by  statute  at  six  thousand  dollars  a  year. 

Several  terms  of  the  District  Court  are  held  each  year.  The 
time  when  the  term  shall  begin  and  the  place  where  the  court 

ming,  North  Dakota,  South  Dakota,  Utah,  and  Oklahoma;  the  ninth,  with  three 
judKes,  CaUfornia,  Oregon,  Nevada,  Washington,  Idaho,  Montana,  the  Territory 
of  Hawaii,  and  the  Territory  of  Alaska.  The  Circuit  Court  of  Appeals  in  the  ninth 
circuit  is  also  empowered  to  review  upon  appeal  or  writ  of  error  the  decisions  of  the 
United  States  Court  for  China,  established  in  igo6  under  treaty  agreement. 

•  Beard,  "  American  Government  and  Politics,"  New  and  Revised  Edition,  p.  2g8. 


246  COMPAR.\TIVE   FREE   GOVERNMENT 

shall  sit  are  in  each  instance  specified  in  the  law.  A  good 
many  of  the  districts  are  divided  into  smaller  districts  known 
as  "  divisions,"  provision  being  made  for  holding  court  in  each 
division  at  stated  times.  To  illustrate  the  arrangement,  take 
the  provisions  of  the  law  that  apply  to  Iowa,  a  typical  State. 
Iowa  is  divided  into  two  districts,  known  as  the  northern  and 
southern  districts,  in  each  of  which  there  is  a  District  Court. 
Each  of  these  courts  has  its  own  judge  and  staff  of  court  officers. 
The  northern  district  contains  four  divisions  and  the  southern 
district  six  divisions,  in  each  of  which  the  court  convenes  twice 
a  year.  The  time  for  holding  court  in  each  division  is  fixed  by 
law.  Similar  provision  is  made  for  each  of  the  divisions  and  dis- 
tricts, where  the  latter  are  divided,  in  the  entire  country.  Dis- 
trict Court  is  held  in  some  two  hundred  and  seventy-six  places. 

Special  terms  may  be  held  at  any  time  when  the  district 
judge  feels  that  there  is  need.  These  may  convene  at  the  same 
places  as  the  regular  terms,  or  elsewhere  as  the  judge  may 
direct.  Any  business  may  be  transacted  at  a  special  term  which 
may  be  transacted  at  a  regular  term.  For  equity  and  ad- 
miralty business,  the  District  Courts  are  always  open,  whether 
in  term  time  or  in  vacation. 

In  case  a  district  judge  is  prevented,  by  any  disability,  from 
holding  court  at  the  stated  time,  some  other  district  judge, 
under  a  procedure  provided  by  law,  may  be  called  in  to  take 
his  place  and  perform  all  his  duties  while  the  disability  con- 
tinues. Ordinarily  the  judge  called  upon  in  this  way  will  be 
the  judge  of  some  other  district  in  the  same  circuit,  but  if  no 
other  district  judge  of  the  same  circuit  is  available,  a  judge  of 
some  other  circuit  may  be  designated,  in  the  manner  provided 
by  law,  for  the  performance  of  this  duty.  Or,  if  no  district 
judge  can  be  found  for  the  assignment,  one  of  the  circuit  judges 
may  be  named  and  he  will  proceed  to  hold  District  Court  until 
the  disabled  judge  returns  or  other  provision  is  made  for  supply- 
ing the  temporary  vacancy. 

The  District  Court  is  a  court  of  exclusively  original  jurisdic- 
tion. Its  powers  are  wide  and  cover  both  civil  and  criminal 
matters.  Its  criminal  juiisdii  lion,  however,  is  limited  to 
offenses  made  criminal  by  federal  law,  and  is  therefore  very 
different  from  that  of  the  courts  of  the  several  States.  The 
federal  courts  are  not  concerned  with  crimes  under  State  statutes 


THE   FEDERAL   COURTS  —  PRESENT  ORGANIZATION      247 

or  the  common  law,  but  only  with  offenses  against  the  Nation 
which  have  been  made  crimes  by  the  law  of  Congress.  In  the 
trial  of  criminal  cases  the  jury  is  always  used.  This  is  required 
by  the  Constitution  which  guarantees  to  the  accused  in  all 
criminal  prosecutions  except  impeachment  cases,  the  right  to  a 
speedy  and  public  trial  by  an  impartial  jury.  In  some  civil 
matters,  also,  the  jury  is  used.  The  District  Court  thus  is  the 
one  jury  court  in  the  federal  system.  Indictments  are  voted 
by  the  grand  jury  which  is  summoned  by  the  district  judge  at 
the  time  of  the  court's  regular  sessions.  The  grand  jury  indict- 
ment is  required  by  the  Constitution  before  any  person  may  be 
tried  on  a  criminal  charge.  The  federal  grand  jury  consists  of 
not  less  than  sixteen  nor  more  than  twenty-three  persons.  It 
is  not  summoned  to  attend  the  District  Court  unless  the  judge 
considers  that  there  is  need  for  its  services.  The  selection  of 
jurors  and  service  upon  both  the  grand  and  petit  juries  are 
minutely  regulated  by  law. 

In  connection  with  the  District  Court  some  reference  should 
be  made  to  the  representatives  of  the  Department  of  Justice 
in  the  different  judicial  districts.  These  are  the  United  States 
district  attorneys  and  marshals.  There  are  a  district  attorney 
and  a  marshal  in  each  district,  and  where  there  is  need,  assist- 
ants and  deputies  are  appointed.  These  officers  are  appointed 
by  the  President,  with  the  Senate's  approval,  and  are  under  the 
direction  of  the  Attorney- General  of  the  United  States,  who  is 
responsible  to  the  President  for  the  administration  of  the  De- 
partment of  Justice.  It  is  through  the  district  attorneys  that 
prosecutions  for  the  violation  of  federal  laws  are  begun  and 
carried  on  in  the  District  Courts.  In  the  summoning  of  grand 
juries,  the  district  judges  are  guided  largely  by  their  wishes. 
The  efficient  enforcement  of  the  laws,  in  fact,  depends  a  good 
deal  upon  the  integrity,  zeal,  and  skill  of  these  officers.  The 
duty  of  the  marshals  is  to  arrest  offenders  against  federal  laws, 
serve  official  papers,  enforce  the  orders  of  the  court,  and  help 
see  that  the  laws  are  obeyed.  The  district  marshals  are  not 
confined  in  their  work  to  the  jurisdiction  of  their  respective 
District  Courts,  but  serve  also  the  Circuit  Courts  of  Appeals. 

Special  Courts.  —  In  addition  to  the  courts  in  the  regular 
system,  the  United  States  maintains  two  special  courts,  as  pre- 
viously noted.     The  older  of  these  is  the   Court  of  Claims, 


248  COMPARATIVE   FREE   GOVERNMENT 

established  in  1855.  It  consists  of  a  chief  justice  and  four 
judges,  who  are  appointed  in  the  same  manner  as  other  judges 
and  hold  office  during  good  behavior.  The  chief  justice  receives 
an  annual  salary  of  S6500,  and  the  other  judges,  $6000.  The 
court  is  required  to  hold  one  annual  session  at  the  city  of  Wash- 
ington, beginning  on  the  first  Monday  in  December  and  con- 
tinuing as  long  as  the  court  considers  necessary.  Three  of  the 
judges  may  hold  court  and  transact  any  business  that  may 
properly  come  before  it ;  but  the  concurrence  of  three  judges 
is  necessary  to  decide  any  case.  In  general  the  work  of  the 
Court  of  Claims,  as  its  name  indicates,  is  concerned  with  claims 
against  the  government  of  the  United  States.  It  is  very  much 
more  than  an  auditing  body,  however,  and  its  power  and  dignity 
as  a  court  of  high  rank  should  not  be  underestimated.  Its 
jurisdiction  has  been  extended  from  time  to  time  by  act  of 
Congress.  Its  judgments  are  final  in  many  cases,  but  where 
the  amount  in  controversy  exceeds  $3000,  the  claimant,  if  the 
judgment  is  against  him,  may  appeal  to  the  Supreme  Court, 
providing  the  appeal  is  taken  within  ninety  days  after  judgment 
is  rendered.  The  government  is  given  the  right  of  appeal  in 
all  adverse  judgments,  regardless  of  the  sum  involved.  Many 
imjjortant  cases,  involving  large  sums  of  money,  oftentimes 
millions  of  dollars,  are  brought  before  the  Court  of  Claims. 
Cases  may  be  referred  to  it,  also,  by  Congress  or  by  the  execu- 
tive departments.  This  court,  aside  from  expediting  the  settle- 
ment of  claims  against  the  government,  has  served  two  good 
purposes ;  it  has  lightened  the  load  upon  the  Supreme  Court, 
and  it  has  relieved  Congress  from  a  good  deal  of  annoyance 
at  the  hands  of  those  having  private  claims,  who  use  political 
influence  to  obtain  congressional  action.  Such  cases  are  simply 
referred  to  the  Court  of  Claims,  and  Congress  acts  according  to 
the  court's  findings. 

The  other  special  court  is  the  Court  of  Customs  Appeals. 
This  court  was  established  by  the  tariff  act  of  1909,  and  was 
made  necessary  by  the  multitude  of  controversies  arising  out 
of  the  administration  of  the  tariff  laws.  It  consists  of  a  i)resid- 
ing  judge  and  four  associate  judges,  appointed  by  the  President 
in  the  usual  way.  The  salary  is  seven  thousand  dollars  a  year. 
Any  three  members  constitute  a  ciuorum,  and  the  concurrence 
of  ihree  memljcrs  is  necessary  for  the  decision  of  any  case.     The 


THE   FEDERAL   COURTS  —  PRESENT  ORGANIZATION      249 

court  is  always  open  for  the  transaction  of  business,  and  its 
sessions  may  be  held  in  the  several  judicial  circuits,  at  its  own 
discretion.  It  is  made  by  law  the  court  of  final  appeal  in  all 
cases  arising  out  of  controversies  over  the  classification  of  im- 
ported goods  which  involve  questions  of  jurisdiction  and  law. 
In  the  words  of  the  law  creating  the  court,  it  shall  exercise 
"  exclusive  appellate  jurisoiction  to  review  by  appeal,  as  herein 
provided,  final  decisions  by  a  Board  of  General  Appraisers  in 
all  cases  as  to  the  construction  of  the  law  and  the  facts  respect- 
ing the  classification  of  merchandise  and  the  rate  of  duty  im- 
posed thereon  under  such  classification,  and  the  fees  and  charges 
connected  therewith,  and  all  appealable  questions  as  to  the 
jurisdiction  of  said  board,  and  all  appealable  questions  as  to  the 
laws  and  regulations  governing  the  collection  of  customs 
revenues ;  and  the  judgments  of  said  Court  of  Customs  Appeals 
shall  be  final  in  all  such  cases." 

The  courts  of  the  District  of  Columbia  are  federal  courts 
inasmuch  as  the  District  is  federal  territory  and  is  wholly  under 
the  authority  of  Congress,  but  they  are  not  parts  of  the  regular 
court  system.  They  are  local  courts  that  correspond  in  their 
nature  and  functions  to  the  courts  of  one  of  the  States,  although 
cages  sometimes  are  instituted  in  them  which  are  of  importance 
to  the  whole  Nation.  A  complete  system  of  courts  has  been 
established.  This  includes  a  Court  of  Appeals,  a  Supreme  Court, 
a  Municipal  Court,  a  Police  Court,  and  a  Juvenile  Court.  The 
Court  of  Appeals,  consisting  of  three  judges,  is  the  highest  in 
rank,  hearing  cases  on  appeal  from  the  District  Supreme  Court 
and  the  other  lower  courts.  It  also  hears  appeals  from  the 
decisions  of  the  Commissioner  of  Patents.  Its  judgments  are 
reviewable,  under  the  conditions  prescribed  by  law,  by  the 
Supreme  Court  of  the  United  States. 

In  the  foregoing  discussion  of  the  federal  courts,  attention 
has  been  given  only  to  their  organization  and  relations  to  one 
another  from  the  standpoint  of  structure.  But  this,  of  itself, 
gives  only  an  imperfect  understanding  of  the  courts  and  their 
working.  To  complete  the  picture,  consideration  must  be  given 
to  the  vital  question  of  powers  and  jurisdiction,  the  subject  of 
the  next  chapter. 

REFERENCES 

(For  References,  see  Chap.  XXI.) 


CHAPTER  XX 

Jurisdiction  of  the  Federal  Courts 

The  jurisdiction  of  the  federal  judiciary  is  a  subject  that  is 
Hkely  to  be  somewhat  confusing  to  persons  untrained  in  the 
law,  and  yet  a  fairly  accurate  knowledge  of  its  intricacies  is 
essential  to  a  clear  understanding  of  the  administration  of  jus- 
tice in  the  United  States.  Indeed,  more  than  that  is  dependent 
on  this  knowledge.  The  very  powers  of  government  —  of  the 
States,  of  the  Nation,  of  governmental  departments  —  may  be 
involved  in  the  action  of  the  federal  judicial  authority.  Con- 
stitutional readjustments  and  changes  in  legislative  and  adminis- 
trative policies  may  follow  its  decisions.  The  question  of  the 
right  of  the  judiciary  to  act,  therefore,  becomes  one  of  supreme 
consequence,  and  an  understanding  of  the  relation  of  the  States 
to  one  another  and  to  the  Nation,  and  of  the  status  and  powers 
of  the  governmental  departments,  involves  some  knowledge  of 
what  the  judiciary  may  and  may  not  do. 

The  confusion  which  seems  to  inhere  in  the  subject  is  reduced 
somewhat  if  the  fact  is  grasped  that  there  are  two  kinds  of  juris- 
diction to  be  kept  in  mind.  There  is  the  jurisdiction  of  the 
federal  court  system,  taken  as  a  whole,  as  distinguished  from 
that  of  the  State  courts,  and  there  is  the  specific  jurisdiction 
of  each  of  the  courts  in  the  federal  system.  The  one  is  con- 
ferred on  the  courts  by  the  Constitution,  which  enumerates  the 
kinds  of  cases  they  may  hear,  and  the  other  by  act  of  Congress, 
except  in  the  case  of  the  Supreme  Court,  a  part  of  whose  juris- 
diction is  specifically  provided  for  in  the  Constitution.  These 
are  not  in  conflict  in  any  way,  for  Congress  cannot  give  juris- 
diction to  a  court  involving  powers  that  arc  not  recognized  by 
the  Constitution.  All  that  Congress  can  do,  subject  to  the 
limitation  with  resf)ect  to  the  Su[)reme  Court,  is  to  parcel  out 
the  judicial  powers  enumeratefl  in  the  Constitution  among  the 
courts  that  are  established,  and  [jrovide  regulations  for  their 

-250 


JURISDICTION  OF  THE   FEDERAL   COURTS  251 

exercise.  The  totality  of  judicial  power  cannot  be  increased 
or  diminished  by  act  of  Congress.  In  apportioning  the  juris- 
diction of  the  inferior  courts,  Congress  is  free  to  do  what  it 
pleases.  It  may  happen,  therefore,  that  some  of  the  judicial 
power  recognized  by  the  Constitution  is  not  actually  exercised 
by  any  court,  because  Congress  has  not  provided  for  its 
exercise. 

Constitutional  Jurisdiction.  —  First,  then,  let  the  constitu- 
tional jurisdiction  of  the  federal  judiciary  be  considered.  This 
is  not  a  general  jurisdiction,  in  the  legal  sense,  but  a  limited 
jurisdiction.  That  is,  the  federal  courts  cannot  hear  any  and 
all  cases  that  may  arise,  but  only  those  over  which  jurisdiction 
is  given  by  the  Constitution.  The  judiciary,  like  the  legisla- 
tive and  executive  departments,  exercises  delegated,  limited 
powers.  It  can  do  only  what  it  is  expressly  or  by  implication 
permitted  to  do  by  the  Constitution.  In  the  use  of  the  powers 
granted,  however,  it  is  without  restriction.  It  is  this  limitation 
of  their  powers,  it  should  be  noted,  which  differentiates  funda- 
mentally the  federal  courts  from  the  courts  of  a  State,  the  latter 
being  courts  of  general  jurisdiction.  The  principle  involved  is 
the  same  as  that  which  is  in  mind  when  it  is  said  that  the  federal 
government  has  delegated  powers,  while  the  States  have  the 
inherent  or  original  powers  of  government.  The  States  can  act 
in  all  matters  that  have  not  been  denied  to  them  by  the  Con- 
stitution, but  the  federal  government  can  act  only  in  those 
things  that  have  been  delegated  to  it  by  the  same  supreme  au- 
thority.    So  it  is  with  the  courts. 

The  provisions  of  the  Constitution  giving  the  totality  of 
judicial  power  lodged  in  the  Nation  are  contained  in  one  short 
paragraph,  which  reads :  "  The  judicial  power  shall  extend  to 
all  cases,  in  law  and  equity,  arising  under  this  constitution,  the 
laws  of  the  United  States,  and  treaties  made,  or  which  shall  be 
made,  under  their  authority ;  to  all  cases  affecting  ambassadors, 
and  other  public  ministers,  and  consuls;  to  all  cases  of  ad- 
miralty and  maritime  jurisdiction ;  to  controversies  to  which 
the  United  States  shall  be  a  party ;  to  controversies  between 
two  or  more  States ;  between  citizens  of  different  States,  between 
citizens  of  the  same  State  claiming  lands  under  grants  of  dif- 
ferent States,  and  between  a  State,  or  the  citizens  thereof,  and 
foreign  states,  citizens,  or  subjects." 


252  COMPARATIVE   FREE   GOVERNMENT 

It  is  helpful  to  note,  what  a  careful  study  of  these  provisions 
makes  clear,  that  the  causes  which  may  come  before  the  federal 
courts  are  of  two  classes :  those  that  relate  to  certain  questions 
or  matters,  regardless  of  the  persons  who  are  litigants,  and 
those  that  involve  certain  persons  or  parties,  regardless  of  the 
questions  thp-t  are  in  controversy.^  Let  us  take  up  in  order 
the  various  cases  in  each  of  these  classes,  beginning  with  the 
first  one  mentioned,  cases  that  depend  upon  the  questions  in 
litigation. 

Jurisdiction  Dependent  upon  Questions  Involved.  — ■  I.  There 
are  two  general  kinds  of  questions  that  carry  with  them  federal 
jurisdiction :  cases  in  law  and  equity  arising  under  the  federal 
Constitution,  statutes,  or  treaties ;  and  cases  of  admiralty  and 
maritime  jurisdiction. 

I.  The  first  of  these  is  the  most  extensive  class  of  cases 
assigned  to  the  federal  courts  and  gives  to  them  the  authority 
to  hear  and  decide  any  case  which  involves  the  interpretation 
of  the  federal  Constitution,  of  federal  laws,  or  of  treaties.  It 
gives  to  either  party  to  a  suit  who  claims  protection  under  any 
of  these  the  right  to  have  his  case  adjudicated  by  the  federal 
courts,  subject  to  the  regulations  provided  by  Congress.  It 
does  not  require,  however,  that  all  cases  arising  under  the  federal 
Constitution,  laws,  or  treaties  shall  be  heard  by  the  federal 
tribunals.  The  purpose  of  the  provision  is  to  give  the  federal 
government,  through  its  own  courts,  full  authority  to  pass  upon 
all  controversies  involving  its  own  powers.  This  was  necessary 
in  order  to  maintain  its  supremacy  in  the  field  assigned  to  it  by 
the  Constitution.  Action  involving  rights  under  federal  law 
may  be  brought  in  State  courts,  and  if  the  law  is  upheld  and 
enforced,  the  national  authority  has  no  further  concern  in  the 
matter.  But  if  the  rights  claimed  under  federal  law  are  denied 
by  the  .State  court,  then  the  way  must  be  open  for  the  case  to 
be  determined  by  the  federal  court  of  proper  jurisdiction,  either 
upon  the  initiative  of  the  party  asserting  the  authority  of  the 
federal  law,  or  that  of  the  fcfleral  court  itself.  Likewise,  if 
action  is  brought  under  Slate  law,  and  the  issue  is  made  that 
this  law  is  repugnant  to  the  federal  Constitution,  laws,  or  treaties, 
the  final  determination  of  the  matter  must  rest  with  the  federal 
judiciary,  if  the  State  court  upliolds  the  validity  of  the  law  in 

•  Cohens  V.  The  ^tdk  of  Virginia,  6  Wlicalon  264  (1821). 


JURISDICTION    OF   THE   FEDERAL   COURTS  253 

question.  But  if  this  validity  is  denied,  the  national  authority 
is  fully  recognized  and  there  is  no  need  for  an  appeal  to  the 
federal  courts.^  The  principle  involved  in  this  is  the  supremacy 
of  the  national  authority  in  its  own  sphere.  The  only  way  to 
make  this  sure  was  to  give  to  the  Nation  the  unquestioned 
right  to  decide  for  itself  by  means  of  its  own  properly  consti- 
tuted agencies  whether  it  has  or  has  not  the  powers  that  are 
called  in  question. 

It  is  to  be  noted  that  the  phrase,  "  in  law  and  equity,"  in 
the  constitutional  provision  is  without  particular  significance 
as  far  as  distinction  between  the  federal  and  the  State  judicial 
authority  is  concerned.  It  simply  means  that  whether  the 
cases  are  in  law  or  in  equity,  they  may  be  heard  by  the  federal 
judiciary,  if  they  come  within  its  constitutional  jurisdiction.^ 

2.  The  other  kind  of  cases  in  which  the  jurisdiction  turns 
upon  the  character  of  the  question  involved,  are  "  cases  of 
admiralty  and  maritime  jurisdiction."  This  jurisdiction  is  not 
limited  to  the  high  seas,  but  has  been  extended  by  judicial  con- 
struction to  include  all  navigable  waters  within  the  United  States. 
Also,  the  cases  within  this  jurisdiction  are  not  confined  to  prize 
cases,  but  cover  all  transactions  in  connection  with  navigation 
and  the  control  of  the  great  lakes  and  navigable  rivers.  With 
the  great  commercial  development  of  the  United  States  this 
branch  of  the  judiciary's  power  has  become  increasingly  im- 
portant. The  meaning  of  admiralty  and  maritime  jurisdiction 
as  developed  in  the  United  States  is  given  thus  by  Professor 
Willoughby : 

"  Admiralty  jurisdiction  refers  to  that  class  of  cases  which 
are  cognizable  in  courts  established  by  an  admiral,  in  that 
officer  being  vested,  according  to  EngHsh  law,  the  government 

iBryce,  "The  American  Commonwealth/'  New  and  Revised  Edition,  pp.  233- 
234- 

2  "In  the  jurisprudence  of  England,  there  were  at  the  time  our  Constitution  was 
framed,  and  until  recently,  distinct  courts  of  law  and  of  equity.  Law  and  equity 
in  this  sense  are  simply  different  divisions  of  jurisprudence ;  the  distinction  between 
them  depends  on  the  nature  of  the  case,  or  the  nature  of  the  relief  which  the  court 
may  grant.  Such  distinction  is  still  recognized  in  some  of  the  states,  although  in 
many  states  the  same  courts  administer  both  law  and  equity.  By  the  use  of  these 
two  terms  in  the  federal  constitution,  it  was  only  intended  to  indicate  that  both  law 
and  equity  may  be  administered  in  the  federal  courts,  if  the  case  is  one  otherwise 
coming  within  jurisdiction  of  those  courts."'  —  McClain,  "  Constitutional  Law  in 
the  United  States,"  Second  Edition,  p.  230. 


2  54  COIMPAR-VTIVE   FREE   GOVERNMENT 

of  the  King's  navy  and  the  authority  to  hear  all  causes  con- 
nected with  the  sea. 

"  Maritime  jurisdiction,  as  the  name  itself  indicates,  is  the 
jurisdiction  over  matters  relating  to  the  sea.  To  a  very  con- 
siderable extent,  then,  admiralty  jurisdiction  and  maritime 
jurisdiction  are  of  like  meaning.  The  terms  are  not,  however, 
synonymous.  Admiralty  now  has  reference,  primarily,  to  the 
tribunals  in  which  the  causes  are  tried ;  maritime  to  the  nature 
of  the  causes  tried.  The  admiralty  and  maritime  jurisdiction 
of  the  United  States  is  then  of  a  double  nature ;  that  over 
cases  depending  upon  acts  committed  upon  navigable  waters; 
and  that  over  contracts,  and  other  transactions  connected  with 
such  navigable  waters.  In  the  former  class  of  cases  the  juris- 
diction is  given  by  the  locality  of  the  act ;  in  the  latter  class 
by  the  character  of  the  act  or  transaction."  ^ 

Jurisdiction  Determined  by  Parties  Involved.  — 11.  The 
second  class  of  cases  within  the  control  of  the  federal  judiciary, 
those  in  which  the  jurisdiction  is  determined  by  the  parties  to 
the  suits,  without  regard  to  the  question  at  issue,  is  not  so 
extensive  as  the  one  just  considered,  though  itemized  at  greater 
length  in  the  Constitution.  It  includes  controversies,  however, 
of  the  very  highest  importance.     The  cases  are  as  follows : 

I.  When  ambassadors,  public  ministers,  or  consuls  are  parties 
to  the  suit. 

The  control  of  foreign  relations  rests  exclusively  in  the 
federal  government.  The  representatives  of  foreign  nations 
are  accredited  to  the  United  States  and  have  no  dealings  with 
any  of  the  State  governments.  They  arc  the  representatives  of 
independent  sovereign  States,  and  in  any  court  proceedings  in 
which  they  might  be  involved  arc  entitled  to  a  settlement  by 
the  tribunals  of  the  national  government.  It  would  be  con- 
sidered highly  improper  to  subject  them  to  action  by  the  State 
courts,  and  any  attempt  to  do  so  doubtless  would  be  resented 
by  their  respective  governments.  So  the  Constitution  ])i{)vides 
that  cases  affecting  ambassadors,  public  ministers,  or  consuls 
come  within  the  control  of  the  federal  courts;  and  not  only 
that,  but  also,  that  over  such  cases  the  Supreme  Court  has 
original  jurisdiction.  This,  however,  is  not  made  an  exclusive 
jurisdiction.     Hence,  Congress  may  confer  original  jurisdiction 

»  Willoughby,  "  The  CoiislituUoiial  Law  of  the  United  btates,"  Vol.  II,  p.   1 107. 


JURISDICTION  OF  THE  FEDERAL  COURTS  255 

upon  the  inferior  federal  courts  in  cases  involving  foreign  rep- 
resentatives, if  it  wishes  to  do  so.  This  has  been  done  in  the 
case  of  consuls  who,  according  to  the  usages  of  international 
law,  hold  a  position  somewhat  different  from  that  of  ambassa- 
dors and  ministers.  The  right  of  such  officers  to  bring  suit  in 
the  Supreme  Court  continues,  however;  Congress  cannot  set 
aside  or  qualify  in  any  way  the  constitutional  provision.  With 
respect  to  wrongs  committed  by  ambassadors  and  public  minis- 
ters, redress,  under  the  rules  of  international  law  recognized  by 
civilized  nations,  is  not  sought  in  the  courts  but  through  an 
appeal  to  the  State  Department  and  diplomatic  intercourse 
and  agreement.  Such  officers  are  looked  upon  as  exempt  from 
court  control.  The  consul,  however,  being  a  mere  agent  and 
not  the  personal  representative  of  a  foreign  sovereignty,  holds 
a  different  status  and  is  within  the  courts'  jurisdiction. 

2.  When  the  United  States  is  a  party. 

This  provision  merely  gives  to  Congress  the  power  to  provide 
for  the  trial  in  the  federal  courts  of  cases  in  which  the  United 
States  is  a  party,  either  as  plaintiff  or  defendant.  It  does  not, 
of  course,  confer  upon  any  person  the  right  to  bring  suit  against 
the  United  States,  or  imply  that  such  right  exists.  The  national 
government,  the  same  as  a  State  government,  cannot  be  sued 
by  individuals  without  its  own  consent.  The  provision  simply 
makes  clear  that,  if  suits  against  the  Nation  are  to  be  permitted, 
they  shall  be  heard  in  the  federal  and  not  in  the  State  courts. 
No  other  plan  was  possible,  in  the  light  of  the  experience  of  the 
Congress  under  the  Articles  of  Confederation.  The  Nation's 
supremacy  in  its  own  constitutional  sphere  could  not  be  main- 
tained, if  it  were  subject  to  the  authority  of  the  State  courts. 
Only  by  its  own  courts  can  the  Nation  have  its  powers  deter- 
mined. By  act  of  Congress  individuals  are  permitted  to  bring 
suit  against  the  national  government  whenever,  as  provided  by 
law,  there  is  ground  for  action.  The  Court  of  Claims  was 
established  for  the  particular  purpose  of  hearing  cases  for  re- 
covery against  the  United  States.  This  court,  however,  can 
decide  only  the  validity  of  the  claim ;  the  payment  of  the 
judgment  must  be  authorized  and  provided  for  by  Congress. 

3.  When  two  or  more  States  are  parties  to  the  suit. 
Obviously  the  settlement  of  a  controversy  be.tween  two  or 

more  States  could  not  safely  be  left  to  the  courts  of  one  of  the 


256  COMPARATIVE   FREE   GOVERNMENT 

interested  parties.  The  fundamental  idea  which  lies  back  of 
every  judicial  body  is  its  impartiality.  There  can  be  no  satis- 
factory administration  of  justice  on  any  other  basis.  To  insure 
proper  protection  of  the  States  in  their  relations  to  one  another, 
jurisdiction  over  disputes  arising  among  them  was  given  by 
the  Constitution  to  the  federal  judiciary,  which  is  independent 
of  all  the  States  alike.  Disputes  over  State  boundaries  con- 
stitute the  most  important  cases  that  have  arisen  among  the 
States.  At  the  time  of  the  adoption  of  the  Constitution  there 
were  existing  controversies  involving  eleven  States  over  the 
question  of  boundaries,  and  the  constitutional  provision  under 
discussion  was  unquestionably  inserted  by  the  constitution 
makers  with  these  disputes  in  mind.  It  was  clearly  impossible 
to  leave  the  decision  of  these  controversies,  which  were  of  long 
standing,  to  the  courts  of  the  States  whose  claims  were  in 
dispute. 

Moreover,  some  such  arrangement  as  this  was  made  neces- 
sary by  the  constitutional  provision  which  forbids  the  States  to 
negotiate  agreements  with  one  another.  By  such  agreements 
or  by  permitting  the  States  to  settle  their  differences  in  their 
own  way  through  their  own  agencies,  the  Union  itself  might  be 
seriously  endangered.  Here  again  the  maintenance  of  the 
national  authority  made  the  use  of  the  federal  courts  a  necessity. 

It  is  to  be  noted  that  cases  of  this  kind  are  placed  by  the 
Constitution  within  the  original  jurisdiction  of  the  Supreme 
Court,  on  the  same  plane  with  cases  affecting  ambassadors, 
public  ministers,  and  consuls.  These  are  the  only  kinds  of  cases 
thus  set  apart.  It  should  be  added,  however,  that  cases  brought 
by  the  United  States  against  individual  States,  and  by  Slates 
against  the  United  States,  have  been  entertained  and  decided 
l>y  the  Supreme  Court. 

4.  When  a  State  and  citizens  of  another  Slate  arc  parlies  to 
the  suit. 

As  the  Constitution  was  in  the  l^cginning,  two  kinds  of  cases 
were  possible  under  this  provision  :  those  brought  by  a  State 
against  the  cilizx-ns  of  another  State,  and  those  brought  by  the 
citizens  of  a  State  against  another  State.  The  first  is  possible 
now,  but  the  second  is  not.  By  the  eleventh  amendment 
which  became  a  part  of  the  Constitution  in  lyo-S,  only  nine 
years  after  the  Constitution  itself  became  operative,  the  right  of 


JURISDICTION  OF  THE   FEDERAL   COURTS  257 

citizens  of  one  State  to  bring  suit  against  another  State  was 
abolished.  It  was  held  to  reflect  upon  the  dignity  and  to  be  a 
denial  of  the  independence  of  the  States  to  compel  them  to  sub- 
mit to  suits  against  their  will.^  The  result  of  this  amendment 
was  to  make  it  impossible  for  the  federal  courts  to  claim  juris- 
diction in  any  case  brought  against  a  State,  unless  the  case  were 
instituted  by  another  State,  or  by  a  foreign  state,  or  by  the 
United  States. 

Good  reasons  existed  for  placing  the  cases  that  may  arise 
under  this  clause  within  the  jurisdiction  of  the  federal  courts. 
For  one  thing,  justice  demands  that  they  be  heard  by  courts 
entirely  free  from  the  charge  or  even  the  suspicion  of  partiality. 
A  State  appearing  as  plaintiff  in  a  suit  against  a  citizen  of  an- 
other State  could  not  reasonably  expect  to  have  the  cause 
determined  by  its  own  courts ;  neither  could  the  defendant  in 
the  case  reasonably  expect  to  have  the  courts  of  his  own  State 
adjudicate  the  matter.  The  latter  not  only  might  result  in 
injustice  to  the  plaintiff  State,  but  would  compel  it  to  submit 
to  a  course  that  was  not  consistent  with  its  dignity  as  a  State. 
Moreover,  there  is  a  practical  difficulty  in  the  way  of  having 
the  case  determined  by  the  courts  of  the  State  bringing  the  suit. 
The  jurisdiction  of  a  State's  courts  is  limited  absolutely  to  the 
territory  and  persons  within  its  own  boundaries ;  a  non-resident, 
therefore,  cannot  be  brought  within  their  control  unless  he 
appears  voluntarily.  This  of  itself  made  it  necessary  to  give 
the  federal  courts  jurisdiction ;  otherwise  no  decision  could  be 
obtained  and  the  ends  of  justice  would  be  denied. 

5.   When  citizens  of  different  States  are  parties  to  the  suit. 

This  is  one  of  the  most  important  of  the  classes  of  cases 
assigned  to  the  federal  judiciary.  Most  of  the  civil  business 
coming  before  the  inferior  federal  courts  involves  controversies 
between  citizens  of  different  States.  The  object  of  the  con- 
stitutional provision  is  the  same  as  of  others  previously  con- 
sidered, —  to  make  available  for  the  litigants  a  court  that  is 
free  from  prejudice,  or  the  possibility  of  prejudice  on  account 
of  their  citizenship.     The  law  applied  need  not  be  federal  law ; 

>  Great  indignation  prevailed  among  the  people  of  all  the  States  when  the  Supreme 
Court  in  1703,  in  the  case  of  Chisholm  v.  Georgia  (2  Dallas  419)  held  that  a  suit  of 
this  kind  was  permissible  under  the  Constitution.  In  this  case  Georgia  refused 
to  appear,  and  judgment  was  given  against  her  by  default.  The  agitation  which 
this  case  aroused  resulted  in  the  eleventh  amendment. 


258  COMPARATIVE   TREE   GOVERNMENT 

it  may  be  State  law,  —  the  law  of  one  of  the  States  of  which 
parties  to  the  suit  are  citizens,  or  even  of  a  third  State  in 
which,  for  instance,  the  property  involved  in  the  controversy 
is  located. 

In  these  cases  the  question  of  citizenship  is  fundamental, 
and  sometimes  must  be  determined  by  the  court  before  which 
the  suit  is  brought  in  deciding  whether  or  not  it  has  jurisdiction 
under  this  clause  of  the  Constitution.  Citizenship  of  a  State 
and  citizenship  of  the  United  States  are  not  identical.  One 
may  be  a  citizen  of  the  latter  without  being  a  citizen  of  the 
former.  Therefore  for  a  suit  to  be  brought  under  this  consti- 
tutional provision,  the  State  citizenship  of  each  party  must  be 
definitely  estabUshed ;  and  this  citizenship  must  be  of  different 
States.  A  controversy  between  a  citizen  of  a  State  and  a  citizen 
of  the  United  States  residing  in  one  of  the  Territories  of  the 
United  States  or  in  the  District  of  Columbia,  could  not  be 
brought  to  trial  under  this  clause  of  the  Constitution.  It  has 
been  held,  however,  by  the  Supreme  Court,  that  within  the 
meaning  of  this  clause  any  person  who  is  a  citizen  of  the  United 
States,  whether  native  born  or  naturahzed,  is  a  citizen  of  the 
State  in  which  he  has  his  domicile.^ 

It  is  important  to  note  that  corporations,  though  they  are 
not  citizens  in  the  strict  sense  of  the  term  and  cannot  have 
citizenship  such  as  belongs  to  natural  persons,  are  conceded  the 
right,  by  ruling  of  the  Supreme  Court,  to  bring  suits  under  the 
clause  in  question.  The  Court's  position  on  this  has  been 
changed  from  time  to  time,  however.  In  the  beginning  it  was 
held  that  a  corporation  is  not  a  citizen  within  the  meaning  of 
the  diverse  citizenship  clause.  This  is  still  the  theory  of  the 
law,  but  by  a  fiction  the  Court  practically  concedes  citizenship 
to  corporations  for  the  purpose  of  this  clause.  For  many  years 
the  Court  held  that,  since  a  corporation  is  an  artificial  legal 
entity,  it  "  would  look  behind  its  corporate  personality  to  see 
whether  the  individuals  of  which  it  was  composed  were,  each 
and  every  one  of  them,  citizens  of  a  State  dilTerent  from  that 
of  each  of  the  parties  sued."  Later,  however,  this  position  was 
yielded  and  the  Court  asserted  that  it  would  presume  the  citizen- 
shij)  of  the  persons  comi)()slng  the  corporation  to  be  that  of 
the  State  in  which   the  cori)oration  was  chartered.     And  still 

•  Willoughby,  "The  Conslitulional  Law  of  the  United  States,"  Vol.  II,  p.  Q84. 


JURISDICTION   OF  THE   FEDERAL   COURTS  259 

later  it  was  held  that  this  presumption  could  not  be  rebutted.^ 
The  ruling  which  the  court  made  and  which  holds  may  be 
stated  in  its  own  words :  "  Where  a  corporation  is  created  by 
the  laws  of  a  State,  the  legal  presumption  is,  that  its  members 
are  citizens  of  the  State  in  which  alone  the  corporate  body  has 
a  legal  existence ;  and  that  a  suit  by  or  against  a  corporation, 
in  its  corporate  name,  must  be  presumed  to  be  a  suit  by  or 
against  citizens  of  the  State  which  created  the  corporate  body ; 
and  that  no  averment  or  evidence  to  the  contrary  is  admissible, 
for  the  purpose  of  withdrawing  the  suit  from  the  jurisdiction 
of  a  court  of  the  United  States."  -  That  the  actual  citizenship 
of  the  stockholders  is  not  of  the  State  in  which  the  corporation 
is  chartered  seems  to  be  of  no  importance.  The  practical 
effect  of  the  Court's  position  is  to  make  corporations  citizens 
as  far  as  the  diverse  citizenship  clause  is  concerned. 

6.  When  citizens  of  the  same  State  are  parties  to  a  suit  in- 
volving lands  claimed  under  grants  of  different  States. 

Practically  this  class  has  not  given  rise  to  serious  difficulties 
in  its  appUcation,  though  under  it  cases  involving  large  financial 
interests  may  arise.  The  necessity  for  a  provision  of  this  charac- 
ter is  clear  enough.  The  laws  that  are  applicable  are  not  those 
of  the  State  of  which  the  parties  to  the  suit  are  citizens.  And 
the  laws  of  one  State  cannot  be  administered  by  the  courts  of 
another  State.  Cases  of  this  kind  are  clearly  cases  for  the 
federal  courts  and  were  so  regarded  by  the  framers  of  the  Consti- 
tution. 

7.  When  a  State  or  its  citizens  and  a  foreign  state  or  its  citi- 
zens or  subjects  are  parties  to  a  suit. 

This  clause,  though  far  less  important  than  the  others  that 
have  been  considered,  is  interesting  for  different  reasons. 
Several  kinds  of  cases  are  possible  under  it,  at  least  theoretically. 
The  suit  may  be  one  between  a  State  and  a  foreign  state ;  be- 
tween a  State  and  the  citizens  of  a  foreign  state ;  between  the 
citizens  of  a  State  and  a  foreign  state ;  or,  between  the  citizens 
of  a  State  and  aliens,  that  is,  citizens  or  subjects  of  foreign 
states.  With  the  exception  of  the  last  kind,  no  cases  under  this 
clause  have  ever  arisen,  and  it  is  difficult  to  see  how  they  could 
arise.     The  Constitution,  of  course,  cannot  give  a  State  the 

1  Willoughby,  "The  Constitutional  Law  of  the  United  States,"  Vol.  11,  p.  985. 
^Ohio  &•  Mississippi  R.R.  Co.  v.  Wheeler,  i  Black  286  (1862). 


26o  COMPARATIVE   FREE   GOVERNMENT 

right  to  sue  a  foreign  state ;  in  no  way  could  such  foreign  state 
be  compelled  to  appear  as  defendant.  Since  the  States  can  have 
no  deaUngs  with  foreign  states,  except  with  the  consent  of  Con- 
gress, it  is  hard  to  imagine  a  situation  in  which  a  foreign  state 
would  seek  redress  from  a  State  through  the  courts.  If  such 
should  happen,  it  is  presumed  the  jurisdiction  would  lie  with  the 
federal  courts,  although  it  is  by  no  means  sure.  It  would  lie 
there  if  anywhere,  but  it  is  not  at  all  certain  that  this  jurisdiction 
could  be  asserted,  even  if  both  parties  were  to  consent  to  the 
suit.^  Even  the  theoretical  right  of  aliens  to  bring  suit  against 
a  State,  as  provided  for  in  the  original  Constitution,  was 
destroyed  by  the  eleventh  amendment,  and  for  the  same  reasons 
that  the  citizens  of  one  State  were  deprived  of  the  right  to  sue 
another  State.  It  was  inconsistent  with  the  dignity  and  inde- 
pendence of  the  States  of  the  Union.  Suits  between  citizens 
of  a  State  and  ahens,  however,  are  of  frequent  occurrence. 
That  these  should  be  decided  by  the  federal  judiciary  and  not 
by  that  of  the  State  whose  citizens  are  parties  to  the  litigation 
is  obviously  the  only  proper  procedure  possible. 

Jurisdiction  of  Particular  Courts.  —  In  the  discussion  thus 
far  the  only  jurisdiction  considered  is  that  which,  by  constitu- 
tional grant,  is  possible  to  the  federal  judiciary  as  a  whole,  as 
distinguished  from  that  of  the  State  courts.  No  account  has 
been  taken  of  the  special  jurisdiction  of  particular  courts.  It 
remains  to  take  up  in  turn  each  of  the  courts  in  the  regular  sys- 
tem and  see  in  a  general  way  what  part  of  the  constitutional  juris- 
diction has  been  apportioned  to  it  by  Congress,  which,  with  the 
exception  of  two  instances  in  connection  with  the  Supreme  Court, 
has  full  authority  to  say  what  powers  each  court  shall  exercise. 
It  is  logical  to  begin  with  the  Supreme  Court  which,  in  part, 
has  its  jurisdiction  defined  in  the  Constitution. 

I.  The  only  reference  in  the  Constitution  to  the  powers  of 
particular  courts  is  found  in  the  short  paragraph  :  "In  all  cases 
alTecling  ambassadors,  other  public  ministers  and  consuls,  and 
those  in  which  a  Slate  shall  be  a  parly,  the  Supreme  Court 
shall  have  original  jurisdiction.  In  all  the  other  cases  before 
mentioned,  the  Supreme  Court  shall  have  appellate  jurisdiction, 
both  as  to  law  and  fact,  with  such  exceptions,  and  under  such 
regulations  as  the  Congress  shall  make." 

«  VVilloughby,  "  The  Constitutional  Law  of  tlic  Uiiilctl  States,"  Vol.  II,  p.  1060. 


JURISDICTION  OF  THE   FEDERAL   COURTS  26 1 

It  will  be  noticed  that  the  Supreme  Court's  original  jurisdic- 
tion in  the  two  cases  mentioned  is  not,  as  has  been  pointed  out 
previously,  an  exclusive  jurisdiction.  The  inferior  courts  may  be 
made  courts  of  first  instance  in  the  same  kinds  of  cases  by  act  of 
Congress.  Of  course,  the  Supreme  Court  cannot  be  deprived 
by  law  of  its  original  jurisdiction,  and  parties  to  suits  in  the  cases 
mentioned  cannot  be  denied  the  right  of  beginning  action  in  the 
Supreme  Court,  but  they  may  be  given  the  opportunity  to 
start  proceedings  in  the  lower  courts  if  they  wish.  By  law, 
however,  the  Supreme  Court  is  given  exclusive  jurisdiction  in 
all  cases  where  two  or  more  States  are  parties,  and  in  all  suits  or 
proceedings  against  ambassadors  or  other  public  ministers,  or 
their  domestic  servants;  in  cases  brought  by  ambassadors 
or  public  ministers  it  has  original  but  not  exclusive  jurisdiction. 

It  is  to  be  noticed,  also,  that  practically  all  of  the  Supreme 
Court's  work  is  appellate  in  character,  extending  to  all  cases 
that  may  come  before  the  federal  judiciary,  with  the  exception  of 
the  two  cases  in  which  it  is  a  court  of  first  instance.  Full 
authority  to  regulate  this  appellate  jurisdiction,  however,  is 
conferred  upon  Congress,  the  constitutional  provision  not 
guaranteeing  in  any  manner  an  appeal  to  the  Supreme  Court. 
It  is  under  this  authorization  that  Congress  has  conferred  upon 
the  Circuit  Courts  of  Appeals  final  jurisdiction  in  a  large  number 
of  cases,  and  has  regulated  minutely  the  conditions  of  appeal 
from  the  different  lower  courts.  Congress  could  prevent 
appeals  entirely  by  making  no  provision  for  them. 

Attention  should  be  directed  at  this  point,  also,  to  the  fact 
that  the  Constitution  does  not  confer  upon  the  federal  courts 
absolutely  exclusive  jurisdiction  in  any  kind  of  cases.  As  far 
as  the  language  of  the  Constitution  is  concerned,  the  State 
courts  may  exercise  a  concurrent  jurisdiction  with  respect  to 
all  of  the  cases  enumerated  as  being  within  the  scope  of  the 
judicial  power  of  the  Nation.  It  is  left  with  Congress  to  say 
what  the  apportionment  of  jurisdiction  shall  be.  This  the  Con- 
gress has  done  and  has  given  exclusive  jurisdiction  to  the  federal 
courts  in  a  number  of  things,  such  as  federal  crimes,  admiralty 
cases,  patent  right  and  copyright  cases,  suits  in  which  the  United 
States  is  a  party,  suits  between  two  or  more  States,  and  many 
other  matters.  A  good  many  cases  under  the  regulations  of 
Congress  may  be  brought  in  either  the  federal  or  State  courts ; 


262  CO:vIPARATIVE   FREE   GOVERNMENT 

and  in  a  few  instances  the  State  courts  are  permitted  to  have 
exclusive  jurisdiction.  In  thus  distributing  court  jurisdiction, 
Congress  does  not  and  cannot  delegate  judicial  power  to  the 
State  courts.  Congress  has  no  power  over  the  State  courts  or 
any  other  branch  of  the  State  governments.  Whatever  con- 
current jurisdiction  the  State  courts  have  is  theirs  of  their  own 
right.  No  powers  of  any  kind  have  been  given  the  States  by 
the  federal  Constitution  or  by  any  of  the  agencies  created  by 
it.  This  concurrent  judicial  power,  as  is  true  of  any  of  the  con- 
current legislative  powers,  must  be  looked  upon  as  a  part  of  the 
inherent  powers  of  the  States.  The  Constitution  gives  to  Con- 
gress authority  to  confer  exclusive  jurisdiction  in  certain  cases 
upon  the  federal  courts.  If  it  does  not  do  this,  the  State  courts 
are  free  to  act  of  their  own  right. 

The  appellate  jurisdiction  of  the  Supreme  Court,  under  the 
regulations  prescribed  by  Congress,  is  extensive,  and  relates  to 
questions  of  fundamental  importance.  To  make  clear  the 
Court's  powers  in  this  regard,  the  cases  in  which  it  is  permitted 
to  review  the  judgments  of  the  lower  courts,  either  on  appeals 
or  writs  of  error,  may  be  grouped  under  several  heads,  according 
to  the  courts  whose  judgments  are  under  review. 

1.  Appeals  and  writs  of  error  may  be  taken  from  the  District 
Courts  direct  to  the  Supreme  Court  in  cases  involving  the  Dis- 
trict Courts'  jurisdiction,  —  in  such  cases  the  question  of  juris- 
diction alone  being  certified  to  the  Supreme  Court  for  decision  ; 
from  final  sentences  and  decrees  in  prize  cases ;  in  any  case  that 
involves  the  construction  or  application  of  the  federal  Constitu- 
tion ;  in  any  case  in  which  the  constitutionality  of  any  law  of 
the  United  States,  or  the  validity  or  construction  of  any  treaty 
made  under  its  authority  is  drawn  in  question ;  and  in  any  case 
in  which  the  constitution  or  law  of  a  Stale  is  claimed  to  be  in 
contravention  of  the  Constitution  of  the  United  States. 

2.  Appeals  and  writs  of  error  may  be  taken  from  the  Circuit 
Court  of  Appeals  in  any  case  in  which  the  decision  of  the  lower 
court  is  not  made  final  by  law,  provided  the  matter  in  contro- 
versy exceeds  one  thousand  dollars,  besides  (he  costs.  In  any 
case,  civil  or  criminal,  in  which  the  decision  of  the  Circuit  Court 
of  Appeals  is  made  final,  the  Supreme  Court  may  by  the  proper 
writ,  upon  petition  from  any  party  to  the  suit,  order  the  case 
before  it  f(jr  review  and  determination  ;   in  this,  the  Court  has 


JURISDICTION  OF  THE   FEDERAL   COURTS  263 

the  same  power  it  would  have  if  the  case  were  before  it  on  appeal 
or  writ  of  error.  In  any  case  within  its  appellate  jurisdiction, 
as  defined  by  law,  the  Circuit  Court  of  Appeals  may  certify 
to  the  Supreme  Court  any  questions  of  law  upon  which  it  desires 
the  higher  court's  instruction ;  and  the  Supreme  Court  may  then 
give  instructions  which  will  be  binding  upon  the  lower  court,  or 
call  for  the  whole  record  of  the  case  and  proceed  to  decide  it 
just  as  it  would  if  the  matter  were  before  it  for  review  by  writ  of 
error  or  on  appeal. 

3.  Writ  of  error  may  be  taken  from  any  State  court  of  last 
resort  in  any  case  in  which  is  involved  the  validity  of  a  federal 
statute,  or  treaty  or  authority  exercised  under  the  United  States, 
and  the  decision  is  against  such  validity ;  in  any  case  where  is 
drawn  in  question  the  vaHdity  of  State  laws  or  of  an  authority 
exercised  under  them  on  the  ground  of  their  being  repugnant 
to  the  Constitution,  treaties,  or  laws  of  the  United  States,  and 
the  decision  is  in  favor  of  their  validity ;  and  in  any  case 
where  the  decision  is  against  any  title,  right,  privilege,  or  im- 
munity claimed  under  the  Constitution,  laws,  treaties,  or  au- 
thority of  the  United  States.  In  these  cases  the  writ  of  error 
has  the  same  effect  as  if  the  action  complained  of  had  been  taken 
by  a  federal  court,  and  the  Supreme  Court  may  reverse,  modify, 
or  affirm  the  judgment  of  the  State  court  as  it  sees  fit. 

4.  Appeals  may  be  taken  from  the  Court  of  Claims  to  the 
Supreme  Court,  both  by  the  United  States,  which  may  appeal 
from  all  adverse  judgments,  and  by  the  plaintiff,  who  can  appeal 
when  the  amount  in  controversy  exceeds  three  thousand  dollars, 
or  when  his  claim  has  been  declared  forfeited  to  the  United 
States  on  the  charge  of  fraud. 

5.  Writs  of  error  or  appeal  may  also  be  taken  from  the  Court 
of  Appeals  of  the  District  of  Columbia,  the  supreme  courts  of 
the  Territories,  Alaska  and  Hawaii,  and  from  the  courts  of  last 
resort  in  Porto  Rico  and  the  Philippine  Islands. 

6.  Appellate  jurisdiction  is  given  to  the  Supreme  Court, 
under  conditions  prescribed  l)y  law,  in  controversies  arising  in 
bankruptcy   proceedings. 

This  brief  statement  of  the  conditions  under  which  the  judg- 
ments of  lower  courts  may  be  reviewed,  though  incomplete  as 
to  details,  makes  plain  the  wide  extent  of  the  Supreme  Court's 
appellate  jurisdiction.     With  these  facts  in  mind  it  is  easy  to 


264  CO^IPARATIVE   FREE   GOVERN^IEXT 

understand  why  the  work  of  the  Court  each  year  is  so  heavy. 
This  is  especially  the  case  when  the  number  of  courts  from  which 
appeals  may  be  taken  is  recalled,  —  nine  Circuit  Courts  of 
Appeals,  about  eighty  District  Courts,  forty-eight  State  courts, 
and  in  addition  the  various  special  courts  and  the  courts  of  the 
Territories  and  Dependencies. 

II.  Next  in  order  comes  the  jurisdiction  of  the  Circuit  Courts 
of  Appeals  as  established  by  Congress.  These  courts  have  no 
original  jurisdiction.  Their  appellate  power,  though  hmited, 
is  extensive  and  in  a  good  many  important  cases  is  final. 
The  essential  provisions  of  the  law  may  be  given  in  a  few  words. 
It  is  stated  that  the  Circuit  Courts  of  Appeals  shall  have  power 
to  review  by  appeal  or  by  writ  of  error  the  final  decisions  of  the 
District  Courts  in  all  cases  except  those  in  which  appeals  may  be 
taken  direct  from  the  District  Court  to  the  Supreme  Court. 
The  cases  in  which  this  direct  appeal  may  be  made  have  already 
been  given.  It  is  provided,  also,  that  except  when  the  Supreme 
Court  shall  be  asked  for  instructions  or  shall  order  a  case  to  be 
sent  up  by  the  Circuit  Court  of  Appeals  for  determination  by 
the  high  court,  as  previously  outhned,  "  the  judgments  and 
decrees  of  the  Circuit  Court  of  Appeals  shall  be  final  in  all  cases 
in  which  the  jurisdiction  is  dependent  entirely  upon  the  opposite 
parties  to  the  suit  or  controversy  being  aliens  and  citizens  of 
the  United  States,  or  citizens  of  different  States;  also  in  all 
cases  arising  under  the  patent  laws,  under  the  copyright  laws, 
under  the  revenue  laws,  and  under  the  criminal  laws,  and  in 
admiralty  cases."  It  is  further  provided  that  under  the  condi- 
tions prescribed  by  law,  this  court  may  entertain  appeals  in 
bankruptcy  cases  and  from  the  decrees  or  orders  of  the  District 
Courts  in  certain  ecjuity  proceedings,  such  as  the  a])pointmcnt 
of  receivers  and  the  granting  or  dissolving  of  injunctions. 

III.  The  District  Court  is  the  court  of  first  instance,  and  as 
such  has  jurisdiction  '  over  an  exceedingly  large  number  of 
cases.  In  fact,  almost  all  of  the  cases  recognized  as  coming 
within  the  scope  of  the  federal  judiciary  arc  heard  in  the  District 
Courts.  An  entire  chapter  of  the  Judicial  Code  is  flevoted  to 
its  jurisdiction.  In  this  there  are  listed,  in  detail,  twenty-five 
kinds  or  groups  of  cases  that  may  come  before  the  District 
Court.  Only  the  more  im])orlaiit  of  these  can  be  given  here. 
'Ihe  District  Court  is  given  original  jurisdiction  of  all  crimes 


JURISDICTION   OF  THE   FEDERAL   COURTS  265 

and  offenses  cognizable  under  federal  laws ;  of  all  civil  or  equity 
cases  brought  by  the  United  States ;  of  cases  between  citizens 
of  different  States ;  of  cases  arising  under  the  Constitution,  laws, 
or  treaties  of  the  United  States ;  of  all  admiralty  cases,  seizures, 
and  prizes ;  of  cases  arising  under  the  postal  lavv^s ;  of  suits  under 
the  patent,  copyright,  and  trade-mark  laws ;  of  suits  for  viola- 
tion of  interstate  commerce  laws;  of  suits  relating  to  civil 
rights ;  of  suits  against  consuls ;  of  all  proceedings  in  bank- 
ruptcy ;  of  suits  under  the  immigration  and  contract  labor  laws ; 
of  all  suits  against  trusts,  monopolies,  and  combinations  in 
restraint  of  trade. 

This  list  of  cases  is  not  exhaustive,  but  it  is  sufficiently  com- 
plete to  indicate  the  great  importance  of  the  District  Courts 
and  to  suggest  the  vast  amount  of  litigation  that  comes  before 
them.  Special  attention,  perhaps,  should  be  called  to  their 
criminal  jurisdiction.  This  has  always  been  considered  the 
most  important  part  of  their  jurisdiction,  but  it  is  greater  now 
than  it  used  to  be.  The  jurisdiction  which  formerly  belonged 
to  the  Circuit  Courts  was,  upon  their  abolition,  transferred  to 
the  District  Courts.  The  crimes  of  which  these  courts  may  take 
cognizance  under  federal  law  are,  of  course,  wholly  statutory  in 
character.  There  is  no  federal  common  law  jurisdiction.  For 
an  act  to  be  a  crime  against  the  United  States  it  must  be  de- 
clared to  be  such  by  law  of  Congress  or  by  constitutional  pro- 
vision. Among  the  federal  laws  under  which  criminal  proceed- 
ings are  especially  frequent  are  the  internal  revenue,  tariff, 
and  postal  laws,  and  laws  relating  to  industrial  combinations, 
public  lands,  and  national  banks.  As  the  Nation  has  developed 
the  criminal  jurisdiction  of  its  courts  has  become  wider. 

REFERENCES 

(For  References,  see  Chap.  XXI.) 


CHAPTER  XXI 

The  Courts  and  Legislation 

Of  the  various  powers  possessed  by  the  federal  judiciary,  one 
stands  out  with  striking  clearness  as  preeminent.  This  is  the 
power  of  the  Supreme  Court  to  declare  acts  of  both  the  State 
legislatures  and  of  the  Congress  unconstitutional.  The  tremen- 
dous significance  of  this  prerogative  is  manifest.  It  gives  to 
the  Supreme  Court  of  the  United  States  a  position  that  is  really 
unique  among  the  judicial  tribunals  of  the  world.  In  none  of  the 
countries  of  Europe  is  there  a  court  with  authority  to  set  aside 
an  act  of  the  legislature  on  the  ground  that  it  is  not  in  harmony 
with  the  constitution.  It  is  true  that  in  some  of  the  newer 
states  in  other  parts  of  the  world,  this  American  practice  has 
been  adopted  to  a  greater  or  less  degree.^  Nevertheless,  the 
principle  back,  of  it  is  a  singularly  American  principle ;  it  repre- 
sents one  of  America's  most  vital  contributions  to  the  science  of 
government.  Perhaps  no  other  feature  of  the  government  of 
the  United  States  has  excited  such  deep  interest  among  students 
of  politics.  It  is  universally  admitted  to  be  of  profound  im- 
portance. 

The  peculiar  position  which  the  Supreme  Court  holds  in 
American  government,  as  a  result  of  this  power,  is  also  a  matter 
of  lively  interest  and,  to  a  good  many  jKTSons,  one  of  grave 
concern.  By  the  theory  of  the  Constitution,  the  judiciary,  of 
which  the  Supreme  Court  is  the  head,  is  a  coordinate  branch  of 
the  government.  It  is  neither  inferior  nor  superior  to  the  legis- 
lative and  executive  departments.  Yet  it  is,  in  fact,  the  au- 
thoritative judge  of  their  jjowers,  as  it  is  also  of  its  own.  Euro- 
pean courts  have  no  such  sui)r('mc  fuiK  1  ion  as  this.  In  England, 
for  example,  the  courts  are  bound  l)y  any  act  of  Parliament, 
'ihey  cannot  f|uestion  the  Parliament's  authority. ^  If  the 
interpretation  of  a   law  by  the  English  judiciary  is  not  what 

'  Rclow,  I).  547.  '  Below,  p.  ,S()8. 

200 


THE  COURTS   AND   LEGISLATION  267 

Parliament  intended  or  desires,  it  may  alter  the  law  as  it  sees 
fit ;  the  courts  will  be  bound  by  what  it  does.  But  in  the  United 
States,  the  power  of  Congress  is  what  the  Supreme  Court  says 
it  is.  The  validity  of  any  act  may  be  passed  upon  by  the  Court. 
This  will  not  be  done,  of  course,  unless  a  ''  case  "  arises  in  which 
the  constitutionality  of  the  act  is  drawn  in  question.  The  Su- 
preme Court  on  its  own  initiative  will  not  call  in  question  a  legis- 
lative enactment,  but  it  will  not  hesitate  to  nullify  any  act 
that  is  brought  before  it  in  the  prescribed  manner,  when  it  is 
convinced  that  the  act  is  repugnant  to  the  Constitution,  whose 
final,  authoritative  interpreter  the  Supreme  Court  is. 

Constitution  Makers  and  the  Courts.  —  It  is  a  fact  of  great 
interest  that  the  Constitution  does  not  expressly  confer  upon 
the  Supreme  Court  this  remarkable  power.  There  is  in  it  no 
reference  whatever  to  the  constitutionality  of  laws.  As  pre- 
viously indicated,  the  language  of  the  Constitution  is  somewhat 
vague  with  respect  to  the  judiciary.  The  precise  intention  of  the 
constitution  makers  is  not  clear.  That  some  of  this  vagueness 
was  intentional  is  beyond  dispute.  At  least  some  of  the  men 
who  helped  frame  the  Constitution  were  unwilling  to  have  the 
powers  of  the  judiciary  minutely  defined.  In  this  connection 
Professor  Beard  quotes  Gouverneur  Morris,  one  of  the  leaders 
of  the  convention,  who,  in  speaking  of  the  language  of  the 
Constitution,  used  these  words :  "  Having  rejected  redundant 
and  equivocal  terms,  I  believed  it  as  clear  as  our  language 
would  permit,  excepting,  nevertheless,  a  part  of  what  relates  to 
the  judiciary.  On  that  subject  conflicting  opinions  had  been 
maintained  with  so  much  professional  astuteness  that  it  became 
necessary  to  select  phrases  which  expressing  my  own  notions 
would  not  alarm  others  nor  shock  their  self-love."  ^  This 
statement  makes  it  clear  that  some  members  of  the  convention 
had  in  mind  judicial  activity  which  is  not  specifically  men- 
tioned in  the  Constitution. 

Opinions  differ,  however,  whether  there  was  an  intention  to 
give  the  federal  judiciary  power  to  pass   upon    the  constitu- 

1  Beard,  "American  Government  and  Politics,"  New  and  Revised  Edition,  p.  307. 
For  an  interesting  study  of  the  intentions  of  the  constitution  makers  with  respect 
to  the  power  of  the  Supreme  Court  to  pass  upon  the  constitutionality  of  statutes, 
see  Professor  Beard's  "The  Supreme  Court  and  the  constitution."  An  equally 
interesting  article  in  answer  to  Professor  Beard's  argument,  by  Horace  A.  Davis,  is 
given  in  The  American  Political  Science  Reviru),  Vol.  VII,  p.  541  (November,  1913). 


268  COxMPARATlVE   FREE   GOVERNMENT 

tionality  of  laws.  It  is  held  by  some  that  the  exercise  of  this 
power  is  "  usurpation  "  on  the  part  of  the  courts.'  By  others  it 
is  asserted  that  the  courts  are  clearly  within  their  constitutional 
rights.  The  controversy  over  the  original  intention  can  never 
be  settled,  but  that  some  of  the  men  who  helped  to  draft  the 
Constitution  expected  the  courts  to  exercise  the  power  in  ques- 
tion cannot  be  doubted.  Alexander  Hamilton,  for  instance, 
brought  out  this  fact  clearly  in  his  arguments  for  the  ratifica- 
tion of  the  Constitution.  In  The  Federalist  he  discusses  the 
question  at  some  length  and  asserts  squarely  that  the  limitations 
of  the  Constitution  upon  legislative  authority  can  be  preserved 
only  through  the  courts  of  justice,  "  whose  duty  it  must  be  to 
declare  all  acts  contrary  to  the  manifest  tenor  of  the  Constitu- 
tion void."  2  His  views  are  clearly  stated  in  these  words: 
"  There  is  no  position  which  depends  on  clearer  principles,  than 
that  every  act  of  delegated  authority,  contrary  to  the  tenor  of 
the  commission  under  which  it  is  exercised,  is  void.  No  legisla- 
tive act,  therefore,  contrary  to  the  constitution,  can  be  valid. 
To  deny  this  would  be  to  affirm,  that  the  deputy  is  greater  than 
his  principal ;  that  the  servant  is  above  his  master ;  that  the 
representatives  of  the  people  are  superior  to  the  people  them- 
selves ;  that  men  acting  by  virtue  of  powers,  may  do  not  only 
what  their  powers  do  not  authorize,  but  what  they  forbid.  .  .  . 
The  interpretation  of  the  laws  is  the  proper  and  peculiar  province 
of  the  courts.  A  constitution  is,  in  fact,  and  must  be  regarded 
by  the  judges  as  a  fundamental  law.  It  must  therefore  belong 
to  them  to  ascertain  its  meaning,  as  well  as  the  meaning  of  any 
j)articular  act  proceeding  from  the  legislative  body.  If  there 
should  happen  to  be  an  irreconcilable  variance  between  the  two, 
that  which  has  the  superior  obligation  and  validity  ought,  of 
course,  to  be  preferred ;  in  other  words  the  constitution  ought 
to  be  preferred  to  the  statute,  the  intention  of  the  i)eo])k'  to  the 
intention  of  their  agents.  .  .  .  Nor  does  the  conclusion  by  any 
means  suppose  a  superiority  of  the  judicial  lo  the  legislative 
power.  It  only  supposes  that  the  power  of  the  people  is  superior 
to  both;  and  that  where  the  will  of  the  Irgislature  declared  in 
its  statutes,  stands  in  opposition  to  that  of  the  |)coplc  declared 

iJuflKC   Walter  Clark   in    The  Independent,   Sept.    20,    IQ07;    Political  Science 
Quarterly,  Vol.  XXVI,  p.  238.    Other  magazine  articles  may  readily  be  found. 
» .No.  78. 


THE  COURTS  AND  LEGISLATION  269 

in  the  constitution,  the  judges  ought  to  be  governed  by  the 
latter  rather  than  the  former.  They  ought  to  regulate  their 
decisions  by  the  fundamental  laws,  rather  than  by  those  which 
are  not  fundamental." 

The  opinion  of  Hamilton  is  quoted  here  at  such  length  for  the 
reason  that  it  not  only  shows  what  was  intended  and  publicly 
discussed  by  one  of  the  ablest  members  of  the  constitutional  con- 
vention, but  also  gives  in  essence  the  argument  upon  which  the 
Supreme  Court  based  the  exercise  of  its  power  in  the  beginning 
and  by  which  it  has  been  constantly  justified.  Moreover,  to 
give  expression  to  the  views  of  a  man  who  was  so  influential  as 
Hamilton  is  all  the  more  permissible  inasmuch  as  the  power  of 
the  courts,  and  particularly  this  power  to  nullify  legislative  acts, 
has  become  an  issue  in  the  practical  politics  of  the  present  day. 
From  one  standpoint  it  is  a  matter  of  little  or  no  importance 
what  the  framers  of  the  Constitution  intended ;  the  fact  is  that 
the  Supreme  Court  for  more  than  a  century  has  claimed  and 
exercised  the  right  to  set  aside  legislative  acts  which  it  considered 
to  be  contrary  to  the  Constitution.  And  the  wisdom  of  permit- 
ting the  Court  to  exercise  the  power  now  and  in  the  future  can- 
not rationally  depend  upon  the  original  intention.  However, 
the  popular  judgment  as  to  the  wisdom  of  the  Court's  possessing 
this  power  may  be  materially  influenced  by  the  manner  in  which 
it  was  acquired.  If  the  general  public  were  convinced  that  the 
Supreme  Court  has  usurped  this  great  power,  its  judgment 
would  certainly  be  different  from  what  it  would  be  if  the  opinion 
prevailed  that  the  Court  was  clearly  acting  within  its  constitu- 
tional rights.  So  the  question  of  whether  or  not  the  Court  was 
intended  to  have  this  power  becomes  one  of  some  practical  sig- 
nificance. 

Supreme  Court's  Power  to  Nullify  Legislation.  —  As  stated 
before,  the  Supreme  Court's  power  to  nullify  legislation  is  not 
the  result  of  an  express  grant  in  the  Constitution.  It  is  an 
implied  power,  derived  by  "  necessary  implication."  The  case 
in  which  the  Supreme  Court  asserted  the  power  and  developed 
the  principles  on  which  it  is  based,  is  the  famous  case  of  Marbury 
V.  Madison.^  The  opinion  in  this  case,  given  by  Chief  Justice 
Marshall,  is  one  of  the  most  important  that  has  ever  been  handed 
down.     The  position  taken  by  the  Court  is  somewhat  similar  to 

1  I  Cranch  137  (1803). 


270  COMPARATIVE   FREE   GOVERNMENT 

that  of  Hamilton.  It  asserts  that  the  basic  fact  on  which  the 
American  government  rests  is  the  original  right  of  the  people  to 
establish  whatever  kind  of  government  they  think  will  serve 
them  best.  The  principles  thus  set  up  are  deemed  fundamental. 
Since  they  proceed  from  the  supreme  authority,  which  can 
seldom  act,  they  are  intended  to  be  permanent.  The  Constitu- 
tion embodies  these  principles.  The  will  of  the  people,  through 
the  Constitution,  organizes  the  government  and  assigns  to 
each  department  its  particular  powers.  In  addition  to  this, 
limitations  may  be  set  for  each  department  which  are  not  to  be 
disregarded.  The  United  States  is  a  government  of  this  kind. 
The  powers  of  the  legislature  are  limited,  and  that  the  limita- 
tions may  not  be  mistaken  or  forgotten,  they  are  written  in  the 
Constitution. 

This  Constitution  either  controls  any  legislative  act  that  is 
repugnant  to  it,  or  any  ordinary  legislative  act  may  work  a 
change  in  the  Constitution.  There  is  no  middle  ground  be- 
tween these  two  alternatives.  The  Constitution  is  either  the 
supreme  law,  unchangeable  by  ordinary  means,  or  it  is  on  the 
same  plane  with  ordinary  acts  and  may  be  changed  whenever 
the  legislature  wishes  to  change  it.  But  it  was  clearly  the  in- 
tention of  the  people  to  make  the  Constitution  the  fundamental 
and  paramount  law  of  the  land,  and  therefore  an  act  of  the  legis- 
lature repugnant  to  the  Constitution  must  be  void.  It  is  the 
function  of  the  judiciary  to  say  what  the  law  is,  both  the  funda- 
mental law  and  the  act  of  the  legislature.  In  the  words  of 
Marshall :  "  So  if  a  law  be  in  opposition  to  the  Constitution ; 
if  both  the  law  and  the  Constitution  apply  to  a  particular  case, 
so  that  the  court  must  either  decide  that  case  conformably  to 
the  law,  disregarding  the  Constitution  ;  or  conformably  to  the 
Constitution,  disregarding  the  law;  the  court  must  determine 
which  of  these  conflicting  rules  governs  the  case.  This  is  of 
the  very  essence  of  judicial  duty.  If,  then,  the  courts  are  to 
regard  the  Constitution,  and  the  Constitution  is  superior  to 
any  ordinary  act  of  the  legislature,  the  Constitution,  and  not 
such  ordinary  act,  must  govern  the  case  to  which  they  both 
apply."  Moreover,  the  judges  have  taken  a  solemn  oath  to 
sup[)()rt  the  Constitution,  and  they  would  fail  in  this  and  break 
faith  with  the  [)eoplc,  if  they  should  give  effect  to  a  law  that  is 
not  in  harmony  with  it. 


THE   COURTS   AND   LEGISLATION  27 1 

The  reasoning  of  the  Court,  thus  briefly  outlined,  still  stands ; 
it  has  not  been  modified  by  later  decisions.  However,  it  is  not 
free  from  criticism.  Many  able  expositors  of  the  Constitution 
believe  that  it  is  inconclusive.  For  example,  the  solemn  oath 
to  support  the  Constitution,  of  which  the  Court  makes  so  much, 
of  itself  does  not  single  out  the  judiciary  as  the  only  department 
that  might  pass  upon  the  constitutionality  of  laws.  The  Presi- 
dent takes  an  equally  solemn  oath,  yet  it  is  not  asserted  by  any 
one  that  this  function  therefore  belongs  to  him.  Neither  does  it 
necessarily  belong  to  the  courts  merely  because  of  the  oath. 
That  the  Constitution  should  be  maintained  supreme  is  not 
questioned ;  the  criticism  is  directed  to  the  contention  that  the 
judiciary  is  a  sort  of  divinely  ordained  agency  to  which  alone 
could  the  power  of  testing  the  constitutionality  of  laws  be  in- 
trusted. Even  the  expediency  of  having  the  courts  exercise 
this  power  is  not  doubted  by  many  who  question  the  soundness 
of  the  logic  upon  which  the  Supreme  Court  rests  its  authority. 
Professor  Willoughby  states  well  a  matured  judgment,  held  by 
many  others,  when  he  says :  "  That  organ  or  body  which  has 
the  final  power  to  interpret  the  Constitution  has  necessarily 
the  power  to  give  to  that  instrument  what  meaning  it  will. 
It  thus  becomes,  in  a  sense,  supreme  over  all  the  other  organs  of 
government.  Unless,  therefore,  the  body  from  whose  action 
the  Constitution  itself  derived  its  force  is  to  be  resorted  to  in 
every  case  of  doubtful  construction  (and  this,  of  course,  is  im- 
practicable) the  only  alternative  is  to  delegate  this  supreme 
power  to  some  one  of  the  permanent  organs  of  government. 
But  it  does  not  necessarily  follow,  as  the  reasoning  of  Marshall, 
Webster,  and  Kent  would  seem  to  indicate,  that,  as  an  abstract 
proposition,  this  power  must  always  be  possessed  by  the  judici- 
ary. Indeed,  in  all  other  countries  except  the  United  States,  this 
power  is  vested  in  the  legislature.  These  other  A\Titten  consti- 
tutions did  not,  indeed,  exist  at  the  time  that  Marshall  rendered 
his  opinion,  but  their  i)resent  existence  shows  that  under  a 
written  instrument  of  government  it  does  not  necessarily  follow 
that  the  courts  should  have  a  power  to  hold  void  legislative 
acts  contrary  to  its  provisions."  ^  This  writer  goes  on  to  show 
that  in  his  opinion  the  Supreme  Court  has  authority  under  the 
Constitution   to  disregard  legislative  acts  which  it  considers 

^Willoughby,  "The  Constitutional  Law  of  the  United  States,"  Vol.  I,  p.  4. 


272  COMPARATIVE   FREE   GOVERNMENT 

unconstitutional.  But  this  power  comes  from  the  fact  that  the 
Constitution  and  the  laws  of  the  United  States  made  under  its 
authority  are  declared  to  be  the  "  supreme  law  of  the  land  " 
and  that  the  judicial  power  is  extended  to  "  all  cases,  in  law  and 
ecjuity,  arising  under  the  Constitution."  Judge  IMarshall 
recognized  the  force  of  this  in  his  opinion  in  Marbury  v.  Madison, 
but,  it  is  asserted,  he  did  not  make  it,  as  he  should  have  done, 
the  foundation  of  his  argument.  The  words  of  Marshall  are 
given  to  show  his  thought :  "  The  judicial  power  of  the  United 
States  is  extended  to  all  cases  arising  under  the  Constitution. 
Could  it  be  the  intention  of  those  who  gave  this  power,  to  say 
that  in  using  it  the  Constitution  should  not  be  looked  into? 
That  a  case  arising  under  the  Constitution  should  be  decided 
without  examining  the  instrument  under  which  it  arises? 
This  is  too  extravagant  to  be  maintained."  ' 

Popular  Criticism  of  the  Courts.  —  It  is  to  be  noted  that  the 
general  criticism  of  the  Court  for  exercising  this  power  is  con- 
fined to  its  use  in  nullifying  acts  of  Congress ;  it  does  not  extend 
to  the  setting  aside  of  State  laws  because  they  are  inconsistent 
with  the  federal  Constitution.  The  latter  is  conceded  by  al- 
most every  one  to  be  a  proper  function  of  the  Court.  The  per- 
petuity of  the  Union  is  dependent  upon  a  full  observance  of  the 
limitations  imposed  on  the  States  by  the  Constitution ;  and 
whether  or  not  these  limitations  are  observed  must  be  deter- 
mined by  national  authority.  In  no  other  way  could  the 
national  supremacy  in  its  own  field  be  maintained.  The  nullify- 
ing of  State  statutes  by  a  State's  own  judiciary,  on  the  ground 
that  they  are  not  in  harmony  with  the  State  constitution,  is  a 
difTercnt  matter.  The  federal  courts  have  nothing  to  do  with 
this.  The  widesjiread  dissatisfaction  over  the  voiding  of  legis- 
lative acts  by  the  courts  is  largely  due  to  the  action  of  the  State 
courts.  .'Mlhough  a  discussion  of  the  State  judiciary  does  not 
properly  belong  here  and  is  given  in  a  later  chapter,  it  may  be 
said  that  this  dissatisfaction  has  grown  lapidly  in  rtcent  years, 
both  in  extent  and  intensity,  and  a  strong  demand  has  sprung  up 
in  many  of  the  States  for  thoroughgoing  court  reform.  The 
recall  of  judges  by  popular  vote,  already  provided  for  in  the 
constitutions  of  some  of  the  States,  the  recall  of  judicial  decisions, 
a  proposed  reform  which  has  become  an  issue  in  practical  politics, 

'  W'illoughby,  "  The  Constitutional  Law  of  the  Uniti-d  States,"  \'ol.  I,  p.  6. 


THE   COURTS  AND   LEGISLATION  273 

and  the  vast  amount  of  criticism  of  the  courts  found  in  magazines 
and  books  of  recent  years,  all  give  evidence  of  the  awakening 
that  is  taking  place  among  the  people  with  respect  to  the  judi- 
ciary and  its  functions.  The  movement  for  a  greater  democracy, 
which  is  getting  well  under  way  in  the  United  States,  will  not 
overlook  the  courts.  The  position  they  hold  in  America  is  too 
central,  too  political,  for  them  to  be  ignored.  They  must  be 
the  servants,  not  the  masters  of  the  people.  Although,  as  stated 
before,  the  shortcomings  of  the  State  courts  have  been  chiefly 
in  mind  in  the  agitation  for  reform,  the  national  judiciary  has 
come  in  for  its  share  of  adverse  criticism.  The  belief  is  wide- 
spread that  the  federal  courts  have  been  too  much  under  the 
influence  of  the  big  business  interests  of  the  country  and  that 
they  have  often  failed  to  dispense  even-handed  justice.  The 
will  of  the  people  has  sometimes  been  thwarted  by  their  deci- 
sions and  popular  reforms  blocked.  The  inevitable  result  of 
this  is  to  bring  the  courts  into  the  field  of  partisan  political  dis- 
cussion and  to  arouse  a  demand  for  the  curtailment  of  judicial 
powers. 

Rules  Governing  the  Courts.  —  The  attitude  of  the  federal 
courts  in  passing  upon  the  constitutionality  of  laws  should  be 
kept  clearly  in  mind.  Unless  this  is  done,  unfair  judgment  of 
them  is  probable.  Their  position  is  definitely  stated  in  the 
rules  of  construction  which  have  been  set  up  for  their  guidance 
in  constitutional  cases.  These  rules  are  not  required  by  the 
Constitution  or  by  law,  but  are  established  by  the  courts  volun- 
tarily and  are  strictly  adhered  to.  A  somewhat  full  statement  of 
the  more  important  of  these  principles  of  construction  is  well 
worth  while.^ 

1.  Courts  of  first  instance  will  not  hold  an  act  unconstitutional 
except  in  clear  cases,  but  will  leave  this  to  the  final  judgment  of 
the  Supreme  Court.  The  lower  courts  are  bound  by  the  prior 
decisions  of  the  higher  courts  as  to  the  vahdity  of  an  act,  even 
though  new  arguments  against  it  are  advanced.  The  presump- 
tion is  that  the  superior  courts  considered  all  phases  of  the 
question. 

2.  The  regular  rule  of  the  Supreme  Court  is  that  no  law  will 
be  held  void  except  by  majority  of  the  full  bench. 

'  The  formulation  of  these  rules  is  based  on  that  of  Willoughby  in  his  "  Constitu- 
tional Law  of  the  United  States,"  Vol.  I,  p.  12. 

T 


2  74  COMPARATIVE   FREE   GOVERNMENT 

3.  The  courts  will  not  pass  on  the  constitutionality  of  laws 
except  in  suits  brought  before  them  in  the  manner  prescribed  by- 
law by  parties  whose  material  interests  are  involved.  They 
will  not  of  their  own  accord  raise  the  question  of  constitutional- 
ity. That  must  be  a  point  in  controversy  in  the  suit.  Neither 
will  the  Supreme  Court  express  opinions  as  to  the  constitutional- 
ity of  proposed  acts  upon  request. 

4.  The  Supreme  Court  will  not  deny  vaUdity  to  an  act  of 
Congress  unless  that  is  absolutely  necessary  to  decide  the  case 
before  it.  It  will  not  only  not  go  out  of  its  way  to  declare  the 
law  invalid,  but  will  go  as  far  as  possible  to  uphold  the  law. 

5.  If  it  is  possible  without  doing  too  great  violence  to  the 
language  used  in  the  statute,  it  will  be  construed  so  as  to  hold 
the  law  constitutional.  The  presumption  of  the  Court  is  al- 
ways that  Congress  intended  to  act,  and  did  act,  within  its 
powers,  until  the  contrary  is  affirmatively  shown.  On  the  other 
hand,  if  the  purpose  of  the  act  is  clearly  unconstitutional,  the 
Court  will  not  make  a  strained  or  arbitrary  interpretation  of 
the  language  used  in  order  to  give  validity  to  the  law. 

6.  When  only  a  part  of  a  law  is  held  to  be  unconstitutional, 
the  Court  will  not  permit  this  to  invalidate  the  entire  act,  if 
the  invalid  part  can  be  separated  from  the  remainder  so  as  to 
leave  the  latter  complete,  and  the  Court  is  convinced  that  Con- 
gress or  the  legislature  would  have  enacted  the  remaining  portion 
without  that  whicli  is  set  aside.  If  the  Court  feels  that  the  part 
held  void  is  essential  to  the  accomplishment  of  the  legislative 
intent,  the  whole  act  will  be  nullified. 

These  arc  in  substance  the  leading  rules  which  govern  the 
courts  in  dealing  with  the  question  of  constitutionality.  In 
aridition,  it  is  to  be  emphasized  that  the  courts  are  not  concerned 
with  the  motives  that  actuated  the  legislature  in  passing  the 
law  whose  validity  is  in  dispute,  or  with  the  wisdom  or  ex- 
pediency of  its  enactment.  It  is  also  to  be  emphasized  that 
the  presumption,  as  before  stated,  is  always  in  favor  of  the  con- 
stitutionality of  an  act  of  Congress.  For  this  presumption 
to  be  overthrown,  it  must  be  shown  positively  to  the  Court's 
satisfaction  that  Congress  has  exceeded  its  powers.  In  the 
words  of  the  Court :  "  A  rjccent  respect  for  a  coordinate  branch 
of  the  federal  government  demands  that  the  judiciary  should 
presume,  until  the  contrary  is  clearly  shown,  that  there  has  been 


THE  COURTS  AND  LEGISLATION  275 

no  transgression  of  power  by  Congress,  all  the  members  of  which 
act  under  the  obligation  of  an  oath  of  fidelity  to  the  Constitu- 
tion." 1 

Peculiar  Function  of  American  Courts.  —  It  is  in  the  action 
of  the  courts  in  setting  aside  unconstitutional  legislative  acts 
that  the  one  unique  function  of  the  American  judiciary  finds  its 
most  striking  expression.  This  function  is  fundamental  and  is 
peculiar  to  the  American  system.  It  goes  to  the  very  root  of 
constitutional  government  in  the  United  States  and  differen- 
tiates it  sharply  and  fundamentally  from  those  of  other  countries. 
This  underlying  function  of  the  courts  is  to  protect  the  individual 
citizen  in  the  enjoyment  of  his  rights  against  the  government, 
which  have  been  created  by  the  fundamental  law,  and  at  the  same 
time  preserve  the  powers  of  government  in  all  of  their  fullness. 
It  is  the  function  of  the  balance-wheel,  as  President  Wilson 
describes  it.  In  no  other  country  is  the  constitutional  system 
balanced  in  this  way.  In  the  courts  of  no  other  country  may  the 
rights  of  individuals  be  asserted  and  protected  against  all  govern- 
mental interference  and  the  powers  of  government  in  all  its 
departments  be  authoritatively  defined.  In  no  other  country 
is  the  judiciary  "  meant  to  maintain  that  nice  adjustment  be- 
tween individual  rights  and  governmental  powers  which  con- 
stitutes poUtical  liberty."  ^  In  the  courts  of  other  nations,  in- 
dividuals, as  against  one  another,  may  have  their  rights  ad- 
judicated and  fully  protected ;  but  as  against  the  government 
this  may  not  be  done.^  This  is  a  fact  whose  vital  significance 
must  not  be  overlooked  in  the  comparative  study  of  free  govern- 
ments. That  the  action  of  government  may  be  blocked  by  an 
individual  citizen,  through  an  appeal  to  the  courts,  is  a  stupen- 
dous fact. 

President  Wilson  puts  the  matter  this  way :  "  Constitutional 
government  exists  in  its  completeness  and  full  reahty  only 
when  the  individual,  only  when  every  individual,  is  regarded 
as  a  partner  of  the  government  in  the  conduct  of  the  nation's 
life.  The  citizen  is  not  individually  represented  in  any  as- 
sembly or  in  any  regularly  constituted  part  of  the  government 
itself.     He  cannot,  except  in  the  most  extraordinary  cases  and 

^  Knox  V.  Lee,  12  Wallace  457  (1871). 

^Wilson,  "  Constitutional  Government  in  the  United  States,"  p.  143. 

'  Below,  Chap.  XLIX. 


276  COMPARATIVE   FREE   GOVERNMENT 

with  the  utmost  difficulty,  bring  his  individual  private  affairs 
to  the  attention  of  Congress  or  of  his  state  legislature,  to 
the  attention  of  the  President  of  the  United  states  or  of  the 
executive  officer  of  his  state ;  he  would  lind  himself  balked  of 
relief  if  he  did  by  the  laws  under  which  they  act  and  exercise 
their  clearly  specified  powers.  It  is  only  in  the  courts  that  men 
are  individuals  in  respect  of  their  rights.  Only  in  them  can 
the  individual  citizen  set  up  his  private  right  and  interest  against 
the  government  by  an  appeal  to  the  fundamental  understandings 
upon  which  the  government  rests.  In  no  other  gov^ernment 
but  our  own  can  he  set  them  up  even  there  against  the  govern- 
ment. He  can  everywhere  set  them  up  against  other  individ- 
uals who  would  invade  his  rights  or  who  have  imposed  upon 
him,  but  not  against  the  government.  The  government  under 
every  other  constitutional  system  but  our  own  is  sovereign, 
unquestionable,  to  be  restrained  not  by  the  courts,  but  only  by 
public  opinion,  only  by  the  opinion  of  the  nation  acting  through 
the  representative  chamber.  We  alone  have  given  our  courts 
power  to  restrain  the  government  under  which  they  themselves 
act  and  from  which  they  themselves  derive  their  authority."  ' 

That  this  is  a  profoundly  significant  principle  of  government 
needs  no  proof.  It  accords  to  the  citizen  of  the  United  States 
a  prerogative  such  as  the  citizen  of  no  other  country  enjoys,  — 
that  of  holding  in  check  the  various  agencies  of  government  if 
they  seek  to  invade  the  inviolable  sphere  of  liberty  which  is 
recognized  as  his  by  the  Constitution.  The  manner  in  which 
this  is  done  is  most  spectacularly  shown  by  the  judicial 
nullification  of  legislative  acts,  —  an  action  which,  as  has  been 
I)ointed  out,  the  courts  never  take  except  upon  the  initiative 
of  an  individual  or  of  a  group  of  individuals  whose  interests  arc 
identical. 

Yet,  there  is  gravx'  criticism  of  the  {principle  among  Americans. 
The  opinion  prevails  among  a  good  many  ])ers()iis,  and  is  be- 
coming more  prevalent,  that  the  liberty  of  the  citizen  is  l)cing 
jeopardized  by  the  exercise  of  the  very  power,  which,  under  the 
principle  stated,  is  designed  for  his  protection.  The  danger,  it  is 
said,  comes  not  from  the  executive  or  legislative  (iei)artments, 
but  from  the  courts  themselves.  It  is  by  the  courts  that  the 
will  of  the  people,  as  cxpressi-d  l)y  the  legislature,  is  frequently 

•Wilson,  "  ronstituliiiiial  ('lOVcriuiiLiil  in  the  United  States,"  pp.  143-144. 


THE   COURTS  AND   LEGISLATION  277 

defeated  and  the  pathway  to  important  poHtical  and  economic 
reforms  blocked.  Through  their  power  to  interpret  the  laws 
and  the  Constitution,  the  function  of  the  legislature  is  invaded 
by  the  courts,  and  judicial  legislation  takes  place.  This  is 
contrary  not  only  to  the  spirit  and  letter  of  the  Constitution, 
but  also  to  the  spirit  of  genuine  free  government.  The  legisla- 
tive function,  that  of  determining  national  pohcies,  must  either 
be  in  the  hands  of  the  people  themselves  or  of  direct  representa- 
tives of  the  people  who  are  chosen  for  this  particular  purpose 
and  who  may  be  held  personally  accountable  for  their  actions. 
To  permit  the  judges,  who  are  appointive  officers  and  therefore 
are  without  direct  responsibility  to  the  people,  to  have  it  in 
their  power  to  say  whether  or  not  the  public  will  can  be  made 
effective  in  the  form  of  law,  is  to  permit  a  form  of  oligarchy  to 
govern  in  a  nation  where  the  people  are  by  theory  supposed  to 
rule  themselves.  Curtailment  of  judicial  power,  particularly 
with  respect  to  the  constitutionaUty  of  laws,  is  therefore  neces- 
sary in  the  interest  not  only  of  individual  liberty,  but  of  free 
government. 

Such,  in  brief,  is  the  attitude  of  a  great  many  Americans  to- 
ward the  courts.  They  are  zealous  in  their  desire  for  a  genuinely 
popular  government,  and  they  do  not  want  it  possible  for  five 
men,  a  majority  of  the  Supreme  Court,  to  stand  in  the  way  of 
vital  reforms  demanded  by  the  majority  opinion  in  a  nation  of  a 
hundred  millions  of  people,  and  embodied  in  law  by  the  people's 
own  representatives  in  the  legislative  and  executive  departments. 
The  same  attitude  is  held  toward  the  courts  of  the  States  as 
toward  those  of  the  Nation,  except  that  the  feeling  is  more 
intense  in  the  case  of  the  former  than  of  the  latter.  That  im- 
portant changes  will  be  made  in  some  of  the  State  judicial 
systems  is  apparently  inevitable.  How  far  this  movement  will 
go  and  to  what  extent  the  federal  judiciary  may  be  involved 
before  the  end  is  reached,  the  future  alone  can  tell.  Whether 
wisely  or  unwisely,  whether  promoting  or  retarding  real  democ- 
racy, whether  helpful  or  hurtful  to  true  liberty,  the  demand  is 
put  forward  for  a  limitation  of  judicial  power.  The  courts  are 
being  made  an  issue  in  contentious  politics. 

The  Courts  and  Contentious  Politics.  —  This  in  itself  is  an 
interesting  and  significant  fact.  The  courts  are  supposed  to  be 
independent,  impartial,  non-partisan  tribunals  which  lie  outside 


278  COMPARATIVE  FREE  GOVERNMENT 

the  realm  of  partisan,  controversial  politics.  It  is  a  rule  of 
the  courts  to  have  nothing  to  do  with  pohtical  questions  and 
to  confine  themselves  to  the  strictly  judicial  function  of  inter- 
preting and  applying  the  law  to  the  legal  controversies  that  come 
before  them.  This  rule  is  followed  with  marked  consistency. 
Yet  the  decisions  of  the  courts  again  and  again  are  important 
factors  in  the  struggles  between  the  poUtical  parties,  both  in 
and  out  of  Congress.  This  is  due  to  the  fact  that  they  exercise 
their  power,  when  in  their  judgment  there  is  need,  to  hold  void 
legislative  acts  which  involve  partisan  issues.  In  doing  this 
the  courts  are  performing  their  strict  duty  as  courts  of  law, 
yet  their  actions  are  profoundly  political  or  controversial  in 
their  consequences.  When  the  Supreme  Court,  by  declaring 
an  act  of  Congress  unconstitutional,  makes  it  impossible  for  a 
great  national  poUcy,  which  is  strongly  desired  by  a  majority  of 
the  people,  to  be  carried  out,  it  is  inevitable  that  the  Court's 
action  will  be  made  the  subject  of  partisan  debate  and  strife, 
no  matter  how  coldly  judicial  the  court  may  be,  how  sincerely 
it  may  strive  to  avoid  all  political  entanglements,  and  how 
strictly  it  confines  itself  to  questions  of  law.  Upon  political 
questions,  as  such,  the  Court  will  refuse  to  pass,  but  legal  ques- 
tions, properly  presented  to  it,  cannot  be  avoided,  however 
serious  the  political  consequences  may  be.  For  instance,  in  a 
great  case  involving  the  validity  of  State  laws  providing  for  the 
initiative  and  referendum,  —  the  point  at  issue  being  whether 
or  not  such  laws  contravene  the  principle  of  republicanism,  — 
the  Supreme  Court  evaded  a  definite  decision  on  the  ground  that 
the  question  of  what  constitutes  a  republican  form  of  govern- 
ment, which  is  guaranteed  to  each  of  the  States  by  the  Consti- 
tution, is  a  political  question  which  it  is  the  function  of  Congress 
and  not  of  the  Supreme  Court  to  determine.  Here  was  a  case 
in  which  there  was  a  keen  pul)lic  interest  and  which  involved 
the  interpretation  of  a  conslilulional  clause,  yet  the  Court 
refuscfl  to  give  an  o])inion  because  it  considered  the  issue  politi- 
cal. But  in  another  great  case  involving  the  validity  of  an  act 
of  Congress  establishing  an  income  tax,  —  a  law  which  was  of 
the  very  essence  of  political  controversy,  —  the  Court  did  not 
hesitate  to  declare  the  act  void,  in  this  instance  the  issue  was  a 
question  of  law  and  the  Court  decided  it,  with  complete  indif- 
ference to  the  political  effects  of  the  decision.     The  result  was 


THE  COURTS  AND  LEGISLATION  279 

bitter  public  criticism  and  an  attack  upon  the  Court  in  the 
national  platform  of  the  Democratic  party.  This  income  tax 
case  of  1S95,  decided  by  a  five-to-four  vote,  is  a  striking  example 
of  how  a  great  national  poHcy  demanded  by  public  opinion  may 
be  defeated  through  the  judicial  power.  And  it  is  also  an  ex- 
cellent illustration  of  the  fact  that  it  is  impossible  for  the  Supreme 
Court,  deciding  as  it  must  sometimes  cases  involving  partisan 
issues,  to  keep  free  from  contentious  politics.  It  rivals  in  these 
respects,  indeed,  the  famous  Dred  Scott  decision  of  1857, 
which  Abraham  Lincoln  did  not  hesitate  to  criticize  and  con- 
demn. 

In  another  way,  also,  and  through  the  use  of  another  power, 
the  federal  courts  have  at  times  been  forced  into  the  foreground 
of  public,  partisan  discussion.  This  is  through  the  power  to 
grant  injunctions  and  the  great  freedom  with  which  the  power 
has  been  employed,  particularly  in  connection  with  labor  dis- 
putes. Most  of  these  troubles  involve  citizens  of  different 
States,  and  so  application  to  the  federal  courts  for  relief  is 
always  possible.  Injunctions  at  times  of  labor  disturbances 
have  most  frequently  been  sought  by  employers  against  the 
methods  and  purposes  of  organized  labor.  Many  of  these  have 
been  granted  by  the  courts,  so  many,  indeed,  that  workingmen 
pretty  generally  feel  that  the  courts  have  been  on  the  side  of  the 
employers  and  justice  to  the  workers  has  been  denied.  In  view 
of  the  great  strength  of  organized  labor  in  the  United  States, 
the  injunction  in  labor  troubles  was  certain  to  be  made  a  political 
issue,  sooner  or  later.  The  leading  parties  have  been  compelled 
to  place  injunction  planks  in  their  platforms  looking  toward  a 
restriction  of  the  judicial  power.  Not  only,  therefore,  has  the 
issuance  of  injunctions  made  the  judiciary  the  center  of  political 
discussions,  but  it  also  has  caused  large  numbers  of  people, 
workingmen  and  their  friends,  to  distrust  the  courts  and  to 
feel  that  they  are  too  much  under  the  influence  of  the  big  busi- 
ness interests  of  the  country ;  to  believe  that  the  rights  of  prop- 
erty arc  held  unduly  sacred  by  the  judges,  and  the  rights  of  man, 
the  rights  of  the  worker,  are  ignored  and  abused.  That  this 
belief,  whether  with  cause  or  not,  is  widespread  and  deep-rooted 
is  one  of  the  profoundly  significant  facts  of  American  political 
life.  Its  existence  makes  continued  agitation  for  judicial  re- 
form, if  not  its  attainment,  so  much  a  certainty  that  the  student 


28o  COMPARATIVE   FREE   GOVERNMENT 

who  seeks  to  comprehend  the  inner,  vital  things  of  American 
poUtics  must  give  it  careful  study.  The  position  of  the  courts 
in  the  United  States  is  so  central,  their  power  so  great,  and  their 
service  to  the  Nation  in  the  past  so  unmistakable,  that  even  a 
latent  distrust  of  them  by  any  considerable  proportion  of  the 
people  becomes  a  matter  of  supreme  interest.  The  develop- 
ments of  American  politics  from  the  beginning  have  been  pro- 
foundly influenced  by  the  work  of  the  judiciary.  Its  authority 
was  never  greater  than  at  present,  and  whether  that  authority 
shall  continue  to  grow  still  greater  or  shall  be  diminished  is  one 
of  the  problems  with  which  the  democracy  in  America  must 
struggle. 

REFERENCES 

Baldwin.     The  American  Judiciary. 

Beard.     American  Government  and  Politics,  Edition  1914,  Chap.  XV. 

Beard.     The  Supreme  Court  and  the  Constitution. 

Bryce.     The  American  Commonwealth,  Edition  1910,  Vol.  I,  Chaps.  XXII, 

XXIII,  XXIV. 
Corwin.     The  Doctrine  of  Judicial  Review. 
The  Federalist,  Nos.  78  to  83  inclusive. 
Haines.     The  American  Doctrine  of  Judicial  Siipremacy. 
McClain.     Constitutional  Law  in  the  United  States,  Chaps.  XXV  to  XXIX 

inclusive. 
Reinsch.     Readings  on  American  Federal  Government,  Chap.  XI\'. 
Smith.     The  Spirit  of  American  Government,  Chap.  V. 
WiLLOUGHBY.     The  Constitutional  Law  of  the  United  States,  Vol.  II,   Chaps. 

L,  LI,  LII. 
WiLLOUGHBY.     The  Supreme  Court  of  the  United  States. 
Wilson.     Constitutional  Government  in  the  United  Slates,  Chaj).  VI. 
Woodburn.     The  American  Republic,  Chap.  VI. 
Young.     The  New  American  Government  and  its  Work,  Chaj).  XV. 


CHAPTER  XXII 

Constitutional  Readjustment  by  Amendment 

In  every  truly  constitutional  government  the  question  of  con- 
stitutional readjustment  is  one  of  supreme  interest.  This  is 
particularly  the  case  where  there  are  written  constitutions,  which 
have  a  tendency  to  retard  needed  changes  in  government  and  to 
make  the  existing  political  order  permanent.  In  the  United 
States  this  tendency  is  especially  notable.  One  of  the  chief 
weaknesses  of  the  American  Constitution  is  its  rigidity,  its  fixed 
form,  its  unwillingness,  so  to  speak,  to  change  itself,  or  be 
changed,  in  accord  with  the  constantly  developing  and  enlarg- 
ing pohtical  life  it  controls.  It  tends  to  make  poUtics  static,  to 
keep  things  as  they  are.  Yet  pohtics,  in  large  part,  is  elemen- 
tally dynamic.  It  is  in  continuous  motion,  and  to  stop  this  is  to 
kill  the  state  itself.  The  development  of  civilization  everywhere 
means  greater  complexity  in  social  and  economic  relationships, 
and,  therefore,  greater  governmental  activity.  The  functions  of 
government  multiply  as  democracy  becomes  more  real.  It  is 
axiomatic  that  governmental  activities  must  change  to  meet  the 
needs  of  changed  social,  economic,  and  political  conditions. 
This  inevitably  means  constitutional  readjustments,  sooner 
or  later.  The  constitution  of  a  living  state  is  itself  a  living  thing 
and  must  accommodate  itself  to  new  problems.  If  it  cannot  do 
this,  so  much  the  worse  for  it.  If  the  changes  that  are  needed 
can  be  brought  about  in  the  formal,  prescribed  constitutional 
manner,  all  well  and  good ;  if  they  cannot  be  attained  in  this 
way,  they  will  be  made  in  some  other.  The  life  and  work  of 
a  state  cannot  stop  at  the  commands  of  a  written  constitution. 

Yet  the  tendency  is  strong  with  great  numbers  of  people  to 
oppose  changes  in  the  fundamental  law.  The  wisdom  of  the 
past  is  to  be  exalted  and  that  of  the  present  to  be  distrusted. 
The  constitution  of  the  fathers  becomes  a  sacred  thing,  to  be 
preserved  inviolate.     To  lay  hands  on  this  constitution  for  the 

281 


282  COMPARATIVE  FREE  GOVERNMENT 

purpose  of  changing  it  is  not  only  profanation,  but  subversion  of 
the  governmental  structure.  To  such  persons  the  most  effective 
argument  against  any  proposed  policy  is  the  assertion  that  it  is 
unconstitutional.  This  tendency  and  this  attitude  of  mind 
have  been  particularly  prevalent  in  the  United  States,  where 
the  written  Constitution  has  been  held  up  as  an  object  of  venera- 
tion and  as  the  embodiment  of  the  highest  wisdom  of  which 
the  American  people  are  capable.  This  has  been  due  to  different 
reasons,  —  to  the  inherent  tendency  of  many  persons  to  oppose 
changes  of  any  kind;  to  the  almost  universal  disposition  to 
idolize  the  great  leaders  who  framed  the  Constitution  and  set 
up  the  national  government ;  and,  it  must  be  added,  to  the 
assiduous  efforts  of  those  who  profit  financially  and  politically 
by  the  existing  order  to  cultivate  among  the  people  a  behef  in 
the  sanctity  of  the  Constitution  and  an  attitude  of  reverence  for 
its  provisions.  The  result  has  been  an  unwillingness  to  modify 
the  Constitution  which  is  hard  for  the  outsider  to  understand ; 
for  nowhere  else  is  a  written  constitution  looked  upon  in  quite 
the  same  way. 

Singularly,  however,  yet  naturally,  this  was  not  the  attitude 
toward  the  Constitution  of  the  men  who  framed  it.  To  them 
it  was  far  from  sacred,  far  from  ideal.  It  was  probably  not 
satisfactory  to  a  single  one  of  them,  and  it  was  submitted  for 
ratification  with  misgiving.  Some  of  them  had  little  hope  of 
its  proving  permanently  successful.  It  is  true  that  changes  in 
it  were  looked  forward  to  with  some  anxiety,  but  this  was  not 
because  they  considered  the  Constitution  perfect,  but  because 
they  feared  that  it  might  be  made  even  more  imperfect  through 
alteration.  Men  of  the  clear  vision  and  deep  knowledge  of 
Washington,  Hamilton,  and  Madison  could  not  be  misled  as 
to  the  imperfections  of  the  instrument  drafted  under  such 
trying  circumstances  and  in  the  face  of  such  conflicting  interests 
and  theories  as  confronted  them  and  their  associates  in  the  con- 
stitutional convention.  It  was  never  their  thought  that  the 
Constitution  would  long  continue  in  force  without  change.  The 
fact  that  the  process  of  amendment  was  made  diflicult  and  not 
easy  does  not  indicate  that  they  looked  upon  the  Constitution 
as  incapable  of  improvement.  As  suggested,  it  indicated  rather 
that  they  thought  it  might  be  made  worse,  and  therefore  quick, 
carelessly    considered    amendments    were    made    impossible. 


CONSTITUTIONAL   READJUSTMENT   BY  AMENDMENT      283 

But  that  it  should  never  be  altered  at  all,  regardless  of  defects 
which  experience  might  reveal,  was  certainly  far  from  their 
mind.  Their  position  is  fairly  stated  by  Madison :  "  That 
useful  alterations  v/ill  be  suggested  by  experience,  could  not  but 
be  foreseen.  It  was  requisite,  therefore,  that  a  mode  for  intro- 
ducing them  should  be  provided.  The  mode  preferred  by  the 
convention  seems  to  be  stamped  with  every  mark  of  propriety. 
It  guards  equally  against  that  extreme  facihty,  which  would 
render  the  Constitution  too  mutable;  and  that  extreme  dif- 
ficulty, which  might  perpetuate  its  discovered  faults.  It 
moreover  equally  enables  the  General  and  the  State  govern- 
ments, to  originate  the  amendment  of  errors,  as  they  may  be 
pointed  out  by  the  experience  on  one  side  or  on  the  other."  ^ 

The  Amendment  Process.  —  The  prescribed  method  of 
amendment,  given  in  the  Constitution,  is  as  follows :  "  The 
Congress,  whenever  two-thirds  of  both  Houses  shall  deem  it 
necessary,  shall  propose  amendments  to  this  constitution,  or, 
on  the  appHcation  of  the  legislatures  of  two-thirds  of  the  several 
States,  shall  call  a  convention  for  proposing  amendments,  which, 
in  either  case,  shall  be  valid  to  all  intents  and  purposes  as  parts 
of  this  constitution,  when  ratified  by  the  legislatures  of  three- 
fourths  of  the  several  States,  or  by  conventions  in  three-fourths 
thereof,  as  the  one  or  the  other  mode  of  ratification  may  be 
proposed  by  the  Congress ;  Provided  that  no  amendment  which 
may  be  made  prior  to  the  year  one  thousand  eight  hundred  and 
eight  shall  in  any  manner  affect  the  first  and  fourth  clauses  in 
the  ninth  section  of  the  first  article  ;  and  that  no  State,  without 
its  consent  shall  be  deprived  of  its  equal  suffrage  in  the  Senate." 

The  first  exception  under  the  proviso  has  long  been  of  no 
consequence.  It  was  due  to  the  existence  of  slavery  and  the 
influence  of  the  slave  States.  The  first  part  of  it  related  to  the 
importation  of  slaves,  Congress,  by  the  clause  referred  to  in 
Article  I,  being  forbidden  to  prohibit  such  importation  prior 
to  1808.  The  second  part  of  this  exception  related  to  the  im- 
position by  Congress  of  a  capitation  or  other  direct  tax,  this 
kind  of  tax  being  forbidden  unless  levied  in  proportion  to  the 
census  which  was  ordered  in  a  previous  section  of  the  consti- 
tution. Of  course  after  1808,  amendments  concerning  either 
of  these  questions  were  permissible. 

'  The  Federalist,  No.  43. 


284  COMPARATRE   FREE   GOVERNMENT 

The  second  exception,  that  no  State,  without  its  own  consent, 
shall  be  deprived  of  its  equal  representation  in  the  Senate,  is 
still  binding.  This  means  that  what  is  called  the  "  state- 
hood "  of  a  State  cannot  be  destroyed  without  its  own  consent, 
as  long  as  the  present  Constitution  stands.  The  provision  was 
clearly  inserted  at  the  demand  of  the  small  States,  some  of  which 
were  very  much  afraid  that  their  powers  and  place  in  the  Union 
would  be  destroyed  through  the  votes  of  the  larger  States. 
Madison  observes  somewhat  ponderously  that  this  exception 
"  was  probably  meant  as  a  palladium  to  the  residuary  sover- 
eignty of  the  States,  implied  and  secured  by  that  principle  of 
representation  in  one  branch  of  the  legislature ;  and  was  prob- 
ably insisted  on  by  the  States  particularly  attached  to  that 
equality."  ^  It  is  an  important  exception,  though,  and  might 
under  certain  conditions  give  rise  to  serious  trouble.  It  clearly 
gives  to  some  States  a  decided  advantage  over  others  as  far  as 
voting  in  the  Senate  is  concerned.  Nevada  with  a  population 
of  81,875  in  1910  offsets  in  the  Senate  the  vote  of  New  York 
with  a  population  more  than  one  hundred  and  ten  times  as 
great.  New  York  with  a  population  equal  to  one  tenth  of  that 
of  the  entire  United  States  has  one  forty-eighth  of  the  voting 
power  in  the  Senate. 

It  will  be  seen  that  the  Constitution  provides  for  two  methods 
of  proposing  amendments  and  two  methods  of  ratifying  them. 
Congress,  by  a  two-thirds  vote  in  each  house,  may  propose 
amendments,  or  the  States  may  take  the  initiative.  In  the 
latter  case,  if  the  legislatures  of  two  thirds  of  the  States  demand 
it,  a  convention  must  be  called  by  Congress  for  the  purpose  of 
l)roposing  amendments.  In  this.  Congress  has  no  option  ;  it  must 
arrange  for  the  convention  when  the  necessary  number  of  Slates 
have  requested  it.  A  convention  of  this  kind  has  never  been 
held  because  appUcation  for  it  has  never  been  m.ulc  by  a  suffi- 
cient number  of  States.  In  connection  with  the  amendment 
j)roviding  for  popular  election  of  Senators  it  seemed  likely  for  a 
lime  that  the  requisite  number  of  Stales  might  act,  but  Congress 
fmally  submitted  an  amendment  to  ihe  Slates  and  a  convention 
was  not  necessary.  So  it  happens  thai  in  every  instance  in 
which  the  Constitution  has  been  amended,  the  proposal  has 
come  from  Congress.     It  is  to  be  noled,  in  passing,  that  the 

'  TIk' ludrndist,  No.  .43. 


CONSTITUTIONAL   READJUSTMENT   BY   AMENDxMENT      285 

two-thirds  vote  in  each  house,  required  by  the  Constitution, 
has  been  held  to  mean  merely  two  thirds  of  the  members  present 
and  not  two  thirds  of  the  entire  membership.  A  "  house  " 
for  this  purpose  is  defined  to  be  a  "  quorum  of  the  membership." 
A  quorum  is  all  that  is  necessary  to  constitute  a  house  for  the 
transaction  of  business  and  a  part  of  the  legitimate  business  of 
each  house  is  to  propose  constitutional  amendments. 

Of  the  two  methods  of  ratifying  amendments,  one  is  by  the 
legislatures  of  the  States  and  the  other  is  by  conventions  within 
the  States  called  for  the  purpose.  In  either  case  three  fourths 
of  the  States  must  give  their  approval  before  the  amendment  is 
adopted.  Congress  is  given  the  right  to  say  which  method  shall 
be  employed.  Thus  far  the  convention  method  has  not  been 
used.  Each  of  the  amendments  adopted  has  been  proposed  by 
Congress  and  ratified  by  the  State  legislatures.  Each  State, 
when  it  gives  approval  to  a  proposed  amendment,  certifies 
its  action  to  the  Secretary  of  State,  in  whose  office  a  record 
is  kept.  When  a  sufficient  number  of  States  have  acted  favor- 
ably, official  proclamation  of  the  fact  is  made  and  the  amend- 
ment becomes  a  part  of  the  Constitution.  If  a  State  has  once 
ratified  an  amendment,  it  may  not  rescind  its  action.  That 
action  is  final.  But  if  a  State  rejects  an  amendment,  it  is  free 
to  reconsider  its  action  and  vote  its  approval.  The  amendment 
is  open  for  favorable  action  until  it  has  been  ratified  by  three 
fourths  of  the  States.  Then  further  consideration  of  it  ceases, 
as  it  becomes  at  once  a  part  of  the  Constitution,  binding  upon 
all  the  States  alike. 

Growth  of  the  Constitution  by  Amendment.  —  The  extent 
to  which  the  Constitution  has  been  altered  by  formal  amend- 
ment is  slight.  In  a  century  and  a  quarter,  only  seventeen 
amendments  have  been  adopted.  Of  these,  the  first  ten,  known 
as  the  Bill  of  Rights,  were  proposed  by  the  first  Congress  in 
1789,  only  a  few  months  after  the  government  was  set  in  motion, 
and  may  properly  be  looked  upon  as  parts  of  the  original  Con- 
stitution. They  embody  guaranties  of  certain  fundamental 
rights,  such  as  freedom  of  speech,  of  the  press,  of  religion,  and 
of  peaceable  assemblage ;  right  of  trial  by  jury ;  protection 
against  unreasonable  searches  and  seizures,  and  against  exces- 
sive and  cruel  punishments ;  protection  against  depriving  a 
person  of  life,  Hbcrty,  or  property  without  due  process  of  law. 


286  COMPAR/VTIVE   FREE   GOVERNMENT 

Many  other  fundamental  guaranties  are  included.  Some  of 
the  States  demanded  amendments  of  this  nature  before  they 
would  give  their  approval  to  the  Constitution.  In  fact,  it 
seems  clear  from  the  records  that  ratification  by  the  necessary 
nine  States  would  never  have  been  obtained  if  the  understanding 
had  not  prevailed  that  amendments  would  immediately  be 
submitted  to  the  States.  On  September  25,  17S9,  therefore, 
Congress  proposed  the  first  ten  amendments,  which  were  ratified 
by  the  States  during  the  next  two  years  and  became  parts  of 
the  Constitution  in  1791.^ 

The  eleventh  and  twelfth  amendments  may  also  fairly  be 
looked  upon  as  parts  of  the  original  Constitution  ;  they  are  only 
a  little  less  directly  connected  with  it  than  is  the  Bill  of  Rights. 
They,  like  those  that  preceded,  were  made  necessary  by  the 
difficult  task  of  setting  up  and  starting  in  motion  a  new  national 
government.  The  eleventh  amendment  was  proposed  in  1794 
and  became  a  part  of  the  fundamental  law  in  1798.  It  is  the 
one  which  makes  it  impossible  for  a  suit  to  be  brought  against 
a  State  by  the  citizens  of  another  State  or  by  citizens  or  subjects 
of  a  foreign  state.  The  circumstances  of  its  adoption  have 
already  been  given.-  The  twelfth  amendment  was  proposed 
by  Congress  in  1803  and  was  declared  ratified  the  following  year. 
This  amendment  provided  for  a  change  in  the  method  of  voting 
to  be  observed  by  the  presidential  electors.  As  explained  in 
a  previous  chapter,  the  original  Constitution  provided  that 
the  electors  should  vote  for  two  men,  and  the  one  receiving  the 
highest  numlier  of  votes  should  be  President,  and  the  one  having 
the  next  highest  vote  should  be  Vice  President,  provided,  of 
course,  each  had  a  majority  of  the  whole  number  of  electors.^ 
This  plan  gave  no  trouble  until  political  parties  sprang  up  and 
the  presidential  election  became  a  real  party  contest.  Then, 
since  the  winning  party  wished  to  control  both  the  presidency 
and  the  vice  presidency,  the  full  vote  of  its  electors  was  cast 
for  two  men  as  authorized  by  the  Constitution,  with  the  result 
that  they  had  the  same  vote  and  neither  could  be  declared 
elected  as  President.  This  happencfl  in  1800  in  the  case  of 
Jefferson  and  liurr,  ihc  Democrat i(-i\(i)ul)lican  candidates, 
anrl  Ihc  final  choice  was  thrown  into  the  House  of  Representa- 

'  'Iwi^lvu  amenflmcnts,  in  fact,  were  proposed  by  Congress,  but  two  of  tlicm  were 
rejected  by  the  States.  '  Above,  p.  256.  ^  Above,  Chap.  V. 


CONSTITUTIONAL  READJUSTMENT  BY  AMENDMENT      287 

tives.  It  was  evident  at  once  that  the  electoral  college  plan,  as 
originally  devised,  had  broken  down  and  that  unless  the  Con- 
stitution were  modified,  the  election  of  a  President  would,  in 
each  instance,  very  probably  devolve  upon  the  House  of  Repre- 
sentatives, —  an  outcome  which  was  violently  contrary  to  the 
intention  of  the  Constitution.  A  change  was  therefore  imper- 
ative and  the  twelfth  amendment  was  the  result.  Under  its  pro- 
visions the  electors  cast  separate  ballots  for  President  and  Vice- 
President,  so  that  all  possibility  of  a  situation  such  as  occurred 
in  1800  is  eliminated.  As  suggested,  this  amendment,  like  the 
eleventh,  was  necessary  in  order  to  get  the  government  running 
smoothly.  It  involved  no  fundamental  change  in  the  consti- 
tutional system,  but  was  concerned  only  with  a  detail  of  pro- 
cedure on  the  part  of  presidential  electors. 

From  1S04  until  1865  no  change  was  made  in  the  Constitution, 
although  many  suggestions  were  offered  and  many  resolutions 
proposing  amendments  were  introduced  into  Congress.  In  the 
latter  year  mentioned  the  thirteenth  amendment,  abolishing 
slavery  in  the  United  States,  was  proposed  and  ratified.  This 
was  followed  by  the  fourteenth  in  1868,  which  conferred  citizen- 
ship upon  negroes  and  provided  for  other  things  made  necessary 
by  the  abolition  of  slavery  and  by  the  events  of  the  Civil  War. 
The  fifteenth  amendment  was  adopted  two  years  later,  in  1870, 
providing  that  the  right  of  citizens  of  the  United  States  to  vote 
shall  not  be  denied  or  abridged  on  account  of  race,  color,  or 
previous  condition  of  servitude.  These  three  amendments 
were  distinctly  "  war  amendments,"  growing  out  of  the  great 
Civil  War  struggle  and  the  abolition  of  slavery.  They  were 
the  result  of  thoroughly  abnormal  conditions.  Their  ratifi- 
cation, in  fact,  was  forced  upon  some  of  the  States.  Their 
adoption  can  in  no  way  be  looked  upon  as  a  result  of  the  insistent 
pressure  of  public  opinion  such  as  characterizes  free  governments. 
Moreover,  like  those  that  preceded,  they  involved  no  changes 
in  the  structure  of  the  governmental  s>-stem,  although  they 
are  of  the  highest  importance  and  have  brought  the  Nation 
face  to  face  with  problems  of  the  gravest  nature,  which  are  yet 
clamoring  for  solution. 

Following  the  adoption  of  the  fifteenth  amendment,  a  period 
of  forty-three  years  elapsed  before  the  Constitution  was  again 
formally  altered.     On  February  25,  1913,  after  a  long  period 


288  COMPAR.\TTVE   FREE   GOVERNMENT 

of  agitation,  the  sixteenth  amendment  authorizing  Congress  to 
levy  income  taxes  became  operative.  This  change  was  the 
outgrowth  of  the  decision  of  the  Supreme  Court  in  1895,  de- 
claring unconstitutional  the  income  tax  law  of  the  preceding 
year.  The  position  of  the  Court  was  that  the  provision  of  the 
Constitution  forbidding  Congress  to  levy  direct  taxes  except 
when  apportioned  among  the  States  according  to  their  popu- 
lations, applied  to  incomes  from  real  and  personal  property. 
The  question  of  a  tax  of  this  kind  became  an  issue  in  party 
politics,  and  public  opinion  finally  forced  Congress  to  submit 
to  the  States  an  amendment  making  it  constitutional.  Accord- 
ingly, in  1909,  a  resolution  finally  passed  both  houses  providing 
that  Congress  shall  have  power  "  to  lay  and  collect  taxes  on  in- 
comes, from  whatever  source  derived,  without  apportionment 
among  the  several  States  and  without  regard  to  any  census  or 
enumeration."  After  almost  four  years  the  amendment  was 
ratified  by  three  fourths  of  the  States  and  was  declared  to  be  in 
force. 

In  the  year  1913,  also,  the  seventeenth  amendment  was 
added.  This  provides  for  the  so-called  popular  or  direct  elec- 
tion of  United  States  Senators',  in  place  of  election  by  the 
State  legislatures.  No  other  proposed  change  in  the  Constitu- 
tion has  been  the  cause  of  so  much  discussion  or  has  been  under 
consideration  for  so  long  a  time  as  the  one  embodied  in  this 
amendment.  More  than  seventy-five  years  prior  to  its  adop- 
tion, an  amendment  of  this  character  was  called  to  the  atten- 
tion of  Congress.  Repeatedly  thereafter,  particularly  in  the 
last  thirty  or  forty  years,  the  suggestion  was  renewed  and  resolu- 
tions were  introduced  into  Congress.  Twenty  years  before  its 
final  adoi)tion  an  amendment  of  the  kind  received  the  necessary 
two-thirds  vote  in  the  House  of  Representatives,  but  was  re- 
jected by  the  Senate.  At  other  times  in  later  years  the  same 
thing  occurred,  the  Senate  standing  in  the  way  of  the  reform, 
notwithstanding  an  overwhelming  i)opular  demand  for  it. 
Party  platforms  declared  for  it;  more  than  two  thirds  of  the 
State  legislatures  in(l()rse<l  it  by  resolution,  many  of  them  asking 
Congress  to  call  a  c(jnvention  as  provided  for  in  the  Constitution  ; 
and  everywhere  it  was  discussed  and  urged  upon  Congress. 
In  191 2  at  least  twenty-nine  of  the  Slates  sought  by  various 
kinds  of  primary  election  laws  to  attain  popular  control  o\er 


CONSTITUTIONAL   READJUSTMENT   BY  AMENDMENT      289 

senatorial  elections  by  providing  for  direct  nomination  of 
candidates. 1  Finally,  the  Senate  was  forced  to  yield  and  in 
191 1  passed  an  amendment  resolution.  The  two  houses  did 
not  agree  at  first,  however,  as  to  the  content  of  the  amendment, 
and  it  was  not  until  191 2  that  final  action  was  taken,  and  the 
amendment  was  submitted  to  the  States.  About  a  year  later, 
May  31,  1913,  it  was  proclaimed  to  be  in  force. 

Amendments  Difficult  to  Obtain.  —  From  the  standpoint  of 
a  study  of  the  amendment  process,  the  sixteenth  and  seventeenth 
amendments  are  of  peculiar  interest.  They  are  the  only  amend- 
ments that  have  been  adopted  in  really  normal  conditions,  under 
pressure  of  public  opinion.  They  were  not  the  result  of  war, 
as  were  the  thirteenth,  fourteenth,  and  fifteenth  amendments, 
and  they  were  enacted  under  conditions  altogether  different 
from  those  which  compelled  the  adoption  of  the  first  twelve 
amendments.  Moreover,  the  seventeenth  amendment  is  the 
only  one  adopted  that  has  involved  a  fundamental  structural 
change  in  the  constitutional  system.  This  is  a  fact  of  great 
signilicance.  It  is  noteworthy,  to  say  the  least,  that  a  new 
government  should  be  estabHshed  according  to  an  untried  plan, 
with  many  novel  features,  and  continue  in  operation  for  a 
century  and  a  quarter  before  a  single  change  in  its  fundamental 
structure  was  accomplished  in  the  manner  prescribed  by  the 
Constitution.  That  fact  might  indicate  several  things.  It 
might  indicate,  for  instance,  that  the  Constitution  as  drafted 
was  a  most  perfect  instrument  and  that  the  people  have  been 
highly  content  with  its  provisions.  Or,  it  might  suggest  that 
the  process  of  amendment  is  so  difficult  that  public  opinion  has 
been  unable  to  force  changes  even  where  experience  has  shown 
them  to  be  wise.  Again,  it  might  suggest  that  needed  alter- 
ations, difficult  or  impossible  to  obtain  through  the  formal 
amendment  procedure,  have  been  brought  about  by  circum- 
vention in  ways  and  through  agencies  that  lie  outside  of  the 
Constitution.  The  truth  is,  however,  that  all  of  these  things, 
rather  than  only  one,  are  indicated.  The  Constitution,  though 
far  from  perfect,  has  proven  itself  a  wonderfully  efficient  instru- 
ment, and  in  the  main  the  people  have  shown  themselves  pretty 
well  satisfied.     That  the  work  and  organization  of  the  govern- 

'  Beard,  "American  Government  and  Politics,"  New  and  Revised  Edition, 
P-  243. 

u 


290  COMPARATIVE   FREE  GOVERNMENT 

ment  have  been  profoundly  influenced  by  extra-constitutional 
devices  is  one  of  the  most  obvious  facts  in  connection  with 
American  politics.  Merely  to  mention  the  party  system  is  all 
the  evidence  necessary.  And  that  the  amendment  process  is 
exceedingly  difficult  is  a  fact  easy  to  demonstrate.  Experience 
has  abundantly  proven  it.  The  fact  that  only  seventeen  amend- 
ments have  been  adopted  out  of  some  twenty-two  hundred  that 
have  been  suggested  is  itself  indicative  of  the  truth. 

With  respect  to  the  last  point,  the  difficulty  of  amending 
the  Constitution,  the  struggle  for  the  popular  election  of  Sena- 
tors may  be  cited  again.  The  history  of  the  seventeenth 
amendment  shows  how  comparatively  easy  it  is  to  delay  in- 
definitely, if  not  prevent,  the  adoption  of  an  amendment,  and 
how  overwhelming  and  insistent  the  demand  must  be  at  times 
to  force  Congress  to  act.  The  fact  is  that  the  majorities  required 
for  the  proposal  and  ratification  of  amendments  are  so  large 
that  formal  constitutional  readjustments  become  pretty  nearly 
impossible.  It  will  not  do  to  assert  that  they  cannot  be  made ; 
the  sixteenth  and  seventeenth  amendments  disprove  that. 
Yet  it  is  within  the  truth  to  say  that  under  ordinary  conditions 
the  large  majorities  required, — -two  thirds  in  each  house  of 
Congress,  or  two  thirds  of  the  State  legislatures  necessary  for 
the  proposal,  and  three  fourths  of  the  States,  either  through 
their  legislatures  or  conventions,  necessary  for  ratification,  — 
make  amendments  practically  inii)ossiI)lc,  except  when  there  is 
tremendous  puljlic  pressure.  The  full  significance  of  this  is 
coming  to  be  understood  by  the  masses  of  the  people,  and  a 
strong  demand  has  developed  for  an  easier  method  of  amend- 
ment. The  Progressive  party  in  its  platform  in  1912  inserted 
a  plank  pledging  itself  "  to  provide  a  more  easy  and  expeditious 
method  of  amending  the  federal  constitution."  The  convic- 
tion that  the  amendment  process  should  be  changed  is  not  con- 
fined to  members  of  one  i)arty,  however.  The  question  is  not 
a  party  issue.  Various  suggestions  have  been  made  as  to  what 
the  process  should  be.  One  of  the  most  interesting  was  em- 
bodied in  a  resolution  introduced  into  the  Senate  in  1Q12,  which 
provided  that  the  amendment  procedure  be  changed  so  as  to 
permit  amendments  to  be  proposed  either  by  a  simple  majority 
in  each  house  of  Congress,  or  by  the  action  of  the  legislatures 
or  by  direct  vote  of  the  people  in  ten  states,  and  ratified  by  a 


CONSTITUTIONAL   READJUSTMENT   BY  AMENDMENT      29 1 

majority  of  the  voters  in  a  majority  of  the  States.'  This  would 
not  only  make  amendment  easier  by  reducing  the  majorities 
now  required  by  the  Constitution,  but  also  would  democratize 
the  amendment  process  and  bring  it  into  accord  with  the  spirit 
of  the  age.' 

Amendment  Process  Undemocratic.  —  That  the  method  of 
amendment  worked  out  by  the  framers  of  the  Constitution  is 
highly  undemocratic  cannot  be  denied  even  by  those  who  most 
ardently  defend  it.  Yet  the  United  States,  in  spite  of  consti- 
tutional checks,  has  become  a  democratic  Nation,  and  the 
people  demand  governmental  institutions  that  are  thoroughly 
responsive  to  their  will.  The  fact  is  that  the  Constitution  was 
not  designed  to  be  democratic  and  the  amendment  process  was 
not  intended  to  make  it  easy  for  the  people  to  institute  changes 
in  the  fundamental  law.  It  was  the  deliberate  intention,  rather, 
to  make  such  changes  difficult.  Trust  in  the  wisdom  of  the 
people  and  belief  in  their  capacity  to  run  their  own  government 
unchecked,  in  no  way  characterized  the  men  who  were  respon- 
sible for  the  Constitution.  One  of  the  great  objects  they  had 
in  mind,  and  of  which  they  spoke  again  and  again,  was  stability ; 
but  stability  with  a  democratic  government  they  believed  to 
be  impossible.  Popular  control  they  did  not  want  and  were 
determined  not  to  have,  if  drastic  checks  upon  popular  action 
could  prevent  it.  Making  amendments  to  the  Constitution 
difficult  was  one  way  to  help  accomplish  their  purpose. 

The  significance  of  the  amendment  provision  as  a  check 
upon  democracy  was  clearly  seen  by  leaders  who  were  in  sympa- 
thy with  popular  government.  A  notable  expression  of  what  it 
meant  was  made  by  Patrick  Henry  in  an  argument  against  the 
ratification  of  the  Constitution  before  the  Virginia  convention. 
It  is  worth  while  to  quote  somewhat  freely  from  this  statement.^ 
"  To  encourage  us  to  adopt  it,  they  tell  us  that  there  is  a  plain 
easy  way  of  getting  amendments.  When  I  come  to  contemplate 
this  part,  I  suppose  that  I  am  mad,  or  that  my  countrymen  are 
so.  The  way  to  amendment  is,  in  my  opinion,  shut.  Let  us 
consider  this  plain,  easy  way."     After  quoting  the  amendment 

>  Introduced  by  Senator  La  Follette  of  Wisconsin.  ^  Below,  p.  643. 

^Elliot's  Debates,  Vol.  IH,  pp.  48-50.  Quoted  in  Smith's  "The  Spirit  of 
American  Government,"  pp.  44-46.  Professor  Smith's  chapter  on  the  .Vmendment 
of  the  Constitution  is  keenly  interesting  and  suggestive. 


2  92  COMPARATIVE   FREE   GOVERNMENT 

provision  of  the  Constitution,  he  goes  on :  "  Hence  it  appears 
that  three-fourths  of  the  States  must  ultimately  agree  to  any 
amendments  that  may  be  necessary.  Let  us  consider  the 
consequence  of  this.  However  uncharitable  it  may  appear, 
yet  I  must  tell  my  opinion  —  that  the  most  unworthy  charac- 
ters may  get  into  power,  and  prevent  the  introduction  of  amend- 
ments. Let  us  suppose  —  for  the  case  is  supposable,  possible, 
and  probable  —  that  you  happen  to  deal  those  powers  to  un- 
worthy hands;  will  they  relinquish  powers  already  in  their 
possession,  or  agree  to  amendments?  Two-thirds  of  the  Con- 
gress, or  of  the  State  legislatures,  are  necessary  even  to  propose 
amendments.  If  one- third  of  these  be  unworthy  men,  they  may 
prevent  the  application  for  amendments ;  but  what  is  destruc- 
tive and  mischievous,  is,  that  three-fourths  of  the  State  legis- 
latures, or  of  the  State  conventions,  must  concur  in  the  amend- 
ments when  proposed!  In  such  numerous  bodies,  there  must 
necessarily  be  some  designing,  bad  men.  To  suppose  that  so 
large  a  number  as  three-fourths  of  the  States  will  concur,  is  to 
suppose  that  they  will  possess  genius,  intelligence,  and  integrity, 
approaching  to  miraculous.  It  would  indeed  be  miraculous 
that  they  should  concur  in  the  same  amendments,  or  even  in 
such  as  would  bear  some  likeness  to  one  another;  for  four  of 
the  smallest  States,  that  do  not  collectively  contain  one-tenth 
part  of  the  population  of  the  United  States,  may  obstruct  the 
most  salutary  and  necessary  amendments.  Nay,  in  these 
four  States,  six-tenths  of  the  people  may  reject  these  amend- 
ments; and  suppose  that  amendments  shall  be  opposed  to 
amendments,  which  is  highly  probable,  —  is  it  possible  that 
three-fourths  can  ever  agree  to  the  same  amendments?  A 
bare  majority  in  these  four  small  States  may  hinder  the  adoption 
of  amendments ;  so  that  we  may  fairly  and  justly  conclude  that 
one-twentieth  part  of  the  American  people  may  i)revent  the 
removal  of  the  most  grievous  inconveniences  and  oppression, 
by  refusing  to  accede  to  amendments.  A  trifling  majority  may 
reject  the  most  salutary  amendments.  Is  this  an  easy  mode 
of  securing  the  public  liberty?  It  is,  sir,  a  most  fearful 
situation,  when  the  most  contemptible  minority  can  prevent 
the  alteration  of  the  most  oppressive  government ;  for  it 
may,  in  many  respects,  prove  to  be  such.  Is  this  the  spirit 
of   republicanism?  " 


CONSTITUTIONAL   READJUSTMENT  BY  AMENDMENT      293 

That  experience  has  shown  that  the  difficulty  in  inducing 
Congress  or  the  States  to  propose  amendments  has  been  greater 
than  that  of  obtaining  ratification  of  the  few  that  have  been 
proposed,  does  not  detract  from  the  force  of  Patrick  Henry's 
argument  even  when  applied  to  present  conditions.  The  point 
he  made,  indeed,  is  even  more  telling  now  than  it  was  when  he 
gave  it  expression.  As  far  as  amending  the  Constitution  is 
concerned,  the  claim  of  majority  rule  in  the  United  States  is 
simply  farcical.  An  exceedingly  small  minority  can  block  the 
way  to  constitutional  changes.  It  has  been  computed  that 
according  to  the  census  of  1900,  "  one  forty-fourth  of  the  popu- 
lation distributed  so  as  to  constitute  a  majority  in  the  twelve 
smallest  States  could  defeat  any  proposed  amendment."  ^ 
At  the  present  time,  due  to  the  marvelous  increase  in  the  popu- 
lation of  some  of  the  larger  States,  it  is  doubtless  true  that 
even  a  smaller  minority  properly  distributed,  could  defeat 
proposed  amendments,  although  their  rejection  by  thirteen 
States  is  now  necessary  to  that  end.  The  conclusion  is  unavoid- 
able that  the  amendment  feature  of  the  Constitution  is  extra- 
ordinarily undemocratic  and  that  if  genuine  popular  govern- 
ment is  to  prevail  in  the  United  States  an  easier  method  of 
amendment  must  be  provided. 

The  rigidity  of  the  United  States  Constitution  is  one  of  its 
most  marked  characteristics.  Yet  rigid  constitutions,  hard  to 
modify,  are  incompatible  with  the  spirit  of  truly  free  govern- 
ment, unless  they  are  supplemented  by  statutory  provisions 
which  eliminate  the  need  for  constitutional  changes  —  and  this 
cannot  always  be  done  —  or  are  circumvented  by  extra-consti- 
tutional processes  which  practically  nullify  constitutional  limi- 
tations. "  All  democratic  constitutions  are  flexible  and  easy 
to  amend.  This  follows  from  the  fact  that  in  a  government 
which  the  people  really  control,  a  constitution  is  merely  the 
means  of  securing  the  supremacy  of  public  opinion  and  not  an 
instrument  for  thwarting  it.  Such  a  constitution  cannot  be 
regarded  as  a  check  upon  the  people  themselves.  It  is  a  device 
for  securing  to  them  that  necessary  control  over  their  agents 
and  representatives,  without  which  popular  government  exists 
only  in  name.  A  government  is  democratic  just  in  proportion 
as  it  responds  to  the  will  of  the  people ;   and  since  one  way  of 

*  Smith,  "  The  Spirit  of  American  Government,"  p.  46. 


294  COMPARATIVE   FREE   GOVERNMENT 

defeating  the  will  of  the  people  is  to  make  it  difficult  to  alter 
the  form  of  government,  it  necessarily  follows  that  any  con- 
stitution which  is  democratic  in  spirit  must  yield  readily  to 
changes  in  public  opinion."  ^  If  the  formal  Constitution  of  the 
United  States  is  to  be  in  keeping  with  the  democratic  spirit  of 
the  people,  its  amendment  section  must  be  radically  revised. 
That  this  will  be  done  in  time  can  hardly  be  doubted ;  but 
exactly  what  the  change  shall  be  is  one  of  the  real  problems  of 
American  politics. 

REFERENCES 

Beard.     American  Government  and  Politics,  Edition  1Q14,  Chap.   IV,  pp. 

60-71. 
Bryce.     The  American  Common'^iralth,  luiition  19 10,  Vol.  I,  Chap.  XXXII. 
Smith.     The  Spirit  of  American  Government,  Chap.  IV. 

*  Smith,  "  The  Spirit  of  .American  Government,"  p.  40. 


CHAPTER  XXIII 

Constitutional  Readjustment  through  Law,  Custom,  and 
Judicial  Construction 

What  has  been  said  thus  far  concerning  constitutional  read- 
justment has  had  to  do  exclusively  with  the  formal  Constitution 
and  the  formal  method  of  changing  it.  But  the  formal  Consti- 
tution is  by  no  means  the  real,  the  working  Constitution.  The 
latter  is  made  up  of  the  former  plus  a  good  many  other  things. 
Moreover,  the  formal  amendment  process  is  by  no  means  the 
only  way  of  modifying  fundamentally  the  formal  Constitution, 
It  may  be,  and,  indeed,  has  been  profoundly  influenced,  sup- 
plemented, rounded  out,  in  other  ways.  And  it  is  this  larger 
Constitution  that  is  vital.  To  understand  it  is  to  understand 
the  real  processes  of  government  and  the  many  ways  in  which 
they  act  and  react  upon  one  another ;  and  to  be  content  with 
less  than  this  is  to  be  content  with  an  incomplete,  distorted, 
false  view  of  what  the  United  States  has  done,  and  is  doing,  to 
solve  the  problems  of  free  government.  In  addition,  therefore, 
to  the  formal  procedure  of  amendment,  are  to  be  noted  certain 
other  ways  in  which  the  written  Constitution  has  been  sup- 
plemented and  modified.  There  are  three  of  these,  —  statutory 
provisions,  judicial  interpretations, 'and  custom. 

Growth  through  Legislation.  —  Supplemental  legislation  by 
Congress,  providing  for  many  really  fundamental  parts  of  the 
governmental  structure,  was  made  necessary  by  the  written 
Constitution.  The  machinery  of  government  specifically  estab- 
lished by  the  Constitution,  in  fact,  was  incomplete,  and  with- 
out additional  features  authorized  by  law  could  never  have  met 
the  demands  put  upon  it.  For  instance,  the  constitutional 
provision  authorizing  the  federal  court  system  was  wholly 
inadequate.  Without  action  by  Congress,  there  could  be  no 
federal  courts,  not  even  a  Supreme  Court.  The  statutes, 
therefore,  by  which  the  courts  have  been  created  and  organized 

295 


296  COMPARATIVE   FREE   GOVERNMENT 

may  properly  be  looked  upon  as  "  constitutional,"  that  is,  as 
part  of  the  broad,  working  Constitution  of  the  United  States. 
And  so,  also,  with  laws  affecting  fundamentally  the  other  de- 
partments of  government.  It  is  by  the  Constitution  that  the 
powers  and  instrumentalities  of  the  government  are  distributed 
and  harmonized.  Any  statute,  then,  like  the  Judiciary  Act  of 
1789,  or  its  successor,  the  Judicial  Code  of  191 1,  or  like  those 
establishing  the  executive  departments  or  regulating  the  elec- 
tion of  members  of  Congress,  must  be  considered  parts  of  the 
true  Constitution.  The  extent  of  such  legislation  is  very 
great.  Speaking  of  what  he  calls  "  statutory  elaboration  of  the 
constitution,"  Professor  Beard  says:".  .  .  If  wc  regard  as 
constitutional  all  that  body  of  law  relative  to  the  fundamental 
organization  of  the  three  branches  of  the  federal  government, 
—  legislative,  executive,  and  judicial,  —  then  by  far  the  greater 
portion  of  our  constitutional  law  is  to  be  found  in  the  statutes. 
At  all  events,  whoever  would  trace,  even  in  grand  outlines,  the 
evolution  of  our  constitutional  system  must  take  them  into 
account."  '  To  illustrate  the  kind  of  statutes  in  question,  this 
writer  observes  that  the  twelfth  amendment  is  hardly  more 
important  than  the  law  of  1887,  "  which  elaborates  it  in  great 
detail  Ijy  providing  the  modes  of  counting  the  electoral  votes 
and  determining  controversies."  No  particular  additional 
comment  is  needed  to  emphasize  the  significance  of  these  laws. 
It  should  be  added,  however,  that  though  they  are  as  much  law 
as  the  written  Constitution  itself,  yet  their  status  with  respect 
to  modifications  is  not  the  same  as  that  of  formal  constitutional 
provisions.  They  are  ordinary  law  and  may  be  changed  by  the 
ordinary  legislative  procedure. 

Judicial  Construction.  —  A  second  method  by  which  the 
Constitution  has  been  expanded  is  that  of  judicial  construction. 
To  the  courts,  and  in  the  end  to  tlu-  Supreme  Court,  alone,  be- 
longs the  function  of  interpreting  the  Constitution.  This 
means  that,  in  the  last  analysis,  the  formal  Constitution,  the 
part  which  may  be  subjected  to  construction  by  the  judicial 
power,  is  simj)ly  what  the  Supreme  Court  says  it  is.  It  is  for 
the  Court  to  determine  what  the  Constitution  provides.  Whether 
or  not  the  juflgment  of  the  Court  accords  with  the  opinions  of 
the  legislative  and  executive  departments,  or  with  the  desires 

'  Beard.  "  American  Government  an<l  Politics,  "  New  and  Revised  Edition,  p.  72. 


CONSTITUTIONAL   READJUSTMENT  THROUGH   LAW      297 

of  the  people,  is  a  matter  of  no  moment.  The  Court's  decision 
is  conclusive  as  long  as  the  Court  permits  it  to  stand.  To  get 
at  the  meaning  of  the  Constitution,  then,  the  written  document 
must  be  read  in  the  light  of  all  the  interpretations  of  it  made 
by  the  Supreme  Court  in  the  cases  that  have  come  before  it 
for  adjudication.  Necessarily  there  have  been  many  calls 
upon  the  Court  to  construe  various  constitutional  provisions. 
This  was  inevitable  in  view  of  the  extreme  brevity  of  the  Con- 
stitution and  the  very  general  terms  in  which  it  is  written. 
With  respect  to  some  things  the  Constitution  is  minute  in  its 
provisions,  but  to  a  large  extent  it  deals  with  general  principles 
in  general  terms.  To  apply  these  principles  to  the  specific 
questions  that  have  arisen  has  been  a  most  difficult  task  and 
has  made  the  function  of  constitutional  construction  one  of 
supreme  importance.  From  the  generality  of  the  phraseology 
of  the  Constitution,  the  courts,  when  called  upon  to  construe  it, 
have  been  in  a  position  to  influence  profoundly  the  industrial 
and  poHtical  life  of  the  Nation.  A  tremendous  power  was  thus 
placed  in  the  hands  of  the  judges.  And  this  power  has  become 
of  more  and  more  importance  with  the  passing  years  because 
of  the  marvelous  development  of  the  United  States  and  the 
rise  of  new  problems,  necessarily  unforeseen  by  the  makers  of 
the  Constitution.  In  thus  adapting  the  Constitution  to  unan- 
ticipated conditions,  there  have  been  unavoidably  both  expan- 
sion and  modification.  The  Constitution  to-day  is  a  much  more 
inclusive  document  than  it  was  when  it  was  accepted  by  the 
States  in  17S9.  Undoubtedly  the  powers  of  the  national  gov- 
ernment arc  much  greater  now  than  they  were  intended  or  ex- 
pected to  be  by  those  who  framed  and  ratified  the  Constitution. 
Perhaps  the  most  notable  instance  of  constitutional  expan- 
sion through  judicial  construction  is  found  in  the  power  of 
the  courts  to  declare  legislative  acts  unconstitutional.  As 
brought  out  in  the  discussion  of  the  relation  of  the  courts  to 
legislation,  this  power  was  not  given  to  them  by  express  grant 
of  the  Constitution.  It  is  exceedingly  doubtful  whether  it  was 
the  intention  that  the  judicial  power  should  extend  so  far.  Yet 
the  courts  do  declare  legislative  acts  void  and  have  done  so  since 
1803,  when  the  power  so  to  do  was  asserted  in  the  case  of  Mar- 
bury  V.  Madison.^     The  reasoning  upon  which  the  court  based 

'  I  Cranch  137. 


298  COMPARATIVE   FREE   GOVERNMENT 

its  right  has  already  been  given.  Whether  it  is  sound  or  not, 
is  not  pertinent  here.  The  prime  fact  is  that  the  courts  exer- 
cise the  power  and  the  power  is  derived  by  judicial  construction. 

The  Doctrine  of  Implied  Powers.  —  Other  examples  of  the 
importance  of  judicial  construction  are  found  in  powers  recog- 
nized as  belonging  to  the  Nation,  but  which  come  to  it  by  im- 
plication and  not  by  direct  grant.  From  the  beginning  the 
rule  has  been  to  construe  liberally  all  grants  of  power  made  by 
the  Constitution.  The  Supreme  Court,  from  the  very  first, 
has  recognized  the  right  of  the  national  government  to  exercise 
all  those  powers  which  are  necessary  and  proper  for  the  effective 
use  of  the  powers  specifically  conferred.  This  is  the  essence  of 
the  doctrine  of  implied  powers ;  though  the  doctrine  complete 
covers,  in  addition  to  those  suggested,  the  powers  which  may 
be  implied  from  the  general  nature  and  purpose  of  the  Constitu- 
tion. The  full,  conclusive  statement  of  the  principle  was  made 
by  the  Supreme  Court  in  the  famous  case  of  McCulloch  v. 
Maryland,  decided  in  1819.^  An  implied  power  is  just  as  defi- 
nitely a  "  grant  "  of  power  as  is  one  specifically  enumerated,  and 
is  to  be  construed  with  the  same  liberality. 

Through  the  use  of  this  principle  of  implied  powers  the  author- 
ity of  the  nation  has  been  greatly  extended.  A  number  of 
highly  important  matters  have  become  the  subjects  of  congres- 
sional legislation  which  the  words  of  the  Constitution  in  no  way 
suggest  and  which  the  framers  of  the  Constitution  could  not 
possibly  have  had  in  mind.  Two  or  three  examples  will  be 
sufficient  to  show  the  great  importance  of  the  principle  and  the 
way  in  which  it  has  worked  to  the  extension  of  national  power. 
In  the  case  of  McCulloch  v.  Maryland  one  point  at  issue  was 
whether  the  Congress  had  the  right  to  incorporate  the  Bank 
of  the  United  States,  which  had  been  created  by  law  in  181O, 
inasmuch  as  the  Constitution  did  not  in  express  terms  confer 
this  authority  upon  Congress.  The  court  held  that  Congress 
acted  within  its  powers,  notwithstanding  the  absence  of  a 
specific  grant.  The  jwwer  was  one  to  be  implied  fairly  from 
provisions  which  are  specific.  "  Although,  among  the  enumer- 
ated powers  of  government,  we  do  not  t'md  the  word  '  bank  '  or 
'  incor|K)ration,'  we  find  the  great  |)()wers  to  lay  and  collect 
taxes;    to  borrow  money;    to  regulate  commerce;    to  declare 

'  4  \\  hcalon  ji6. 


CONSTITUTIONAL   READJUSTMENT  THROUGH   LAW      299 

and  conduct  war ;  and  to  raise  and  support  armies  and  navies." 
If  to  carry  out  any  or  all  of  these  powers  a  United  States  bank 
was  deemed  necessary  or  proper  by  the  Congress,  its  right  to 
establish  -the  bank  could  not  be  questioned.  To  Congress 
alone  is  given  the  right  to  determine  what  means  it  shall  employ 
to  carry  out  a  purpose  authorized  by  the  Constitution.  In  this 
instance,  Congress  was  given  specific  control  over  the  Nation's 
fiscal  affairs,  and,  therefore,  could  establish  and  make  use  of 
a  bank  or  any  other  agency  which  might  commend  itself.  On 
the  same  basis,  there  have  been  created  by  Congress  a  national 
currency  and  a  vast  system  of  national  banks,  minutely  regu- 
lated by  law.  The  law  of  1914  reorganizing  the  banking  system 
and  establishing  a  number  of  reserve  banks  was  enacted  under 
this  implied  authority. 

Another  illustration  of  the  expansion  of  national  authority 
is  afforded  by  the  protective  tariff  system  maintained  for  so 
many  years.  By  this  means  the  economic  opportunities  and 
industrial  activities  of  individuals.  States,  and  sections  may  be 
effectively  controlled  by  national  regulations.  Yet  the  Con- 
stitution does  not  expressly  give  Congress  power  to  levy  cus- 
toms duties  for  the  purpose  of  protecting  industries.  It  does 
give  Congress  power,  however,  to  lay  and  collect  taxes  and 
imposts,  and  regulate  commerce  with  foreign  nations.  The 
purpose  and  the  method  of  this  regulation  are  for  Congress 
to  determine.  The  result  is  that  during  nearly  the  whole 
of  its  life,  the  United  States  has  levied  tariff  taxes  which  have 
not  been  merely  for  the  sake  of  revenue.  The  influence  of  this 
policy,  both  industrially  and  politically,  has  been  far  reaching, 
and  the  question  of  the  degree  of  "  protection  "  to  be  afforded 
is  still,  as  it  has  been  from  the  beginning,  one  of  the  large  ques- 
tions in  the  field  of  controversial  politics. 

Again,  there  may  be  cited  the  power  exercised  by  Congress 
over  interstate  commerce.  The  constitutional  provision  is 
merely  that  Congress  shall  have  power  to  regulate  commerce 
among  the  several  States.  In  the  early  da3's  of  the  Republic 
this  was  a  power  of  slight  importance  as  compared  with  what 
it  has  been  for  many  years.  The  growth  of  great  railway  sys- 
tems, traversing  many  States,  and  the  development  of  multi- 
tudes of  corporations,  large  and  small,  doing  an  interstate  busi- 
ness, have  made  this  power  one  of  the  most  vitally  important 


300  COMPARATIVE   FREE    (GOVERNMENT 

powers  which  Congress  possesses.  There  is,  in  fact,  no  more 
difl&cult  problem  confronting  the  American  people  than  that 
involved  in  the  control  of  corporations,  trusts,  and  monopolies, 
and  it  is  through  its  power  to  regulate  interstate  commerce 
that  Congress  may  deal  with  it.  One  of  the  greatest  depart- 
ments of  the  government,  the  Interstate  Commerce  Commis- 
sion, with  its  large  power  of  control  over  interstate  carriers, 
was  established  under  this  power.  All  the  antitrust  legisla- 
tion, beginning  with  the  Sherman  law  of  1890,  has  been  enacted 
under  the  same  authority.  The  tendency  has  been  to  appeal 
more  and  more  to  the  national  power  for  the  control  of  industry. 
But  the  purpose  is  not  always  industrial.  Sometimes  it  is 
distinctly  moral  and  social.  A  splendid  example  of  this  is  the 
so-called  Mann  white  slave  act  which  calls  into  use  the  power  of 
Congress  over  interstate  transportation  to  forbid  the  carrying 
of  persons  from  one  State  to  another  for  immoral  purposes. 
This  act  was  vigorously  attacked  in  the  Courts,  but  its  con- 
stitutionality was  upheld.  Another  evidence  of  this  is  the  pro- 
posed national  child  labor  law  by  which  it  is  sought  to  forbid 
the  interstate  shipment  of  all  goods  in  the  manufacture  of  which 
the  labor  of  children  under  a  specified  age  shall  have  been  used. 
This  kind  of  legislation  has  until  recently  been  looked  upon  as 
coming  exclusively  within  the  power  of  the  States.  The  fact 
that  an  insistent  and  increasing  demand  has  developed  for 
national  action  clearly  indicates  the  great  expansion  that  the 
power  of  Congress  over  interstate  commerce  has  undergone. 

Still  other  illustrations  of  the  development  of  national  author- 
ity through  the  j)rincii)le  of  implied  j)owers  could  easily  be  cited, 
but  these  are  sufficient  to  show  how  the  i)rinci])le  works.  The 
enumerated  jwwers  are  comparatively  few,  but  these  give  rise 
to  many  imi)lied  i)owers.  The  exercise  of  one  calls  for  the  exer- 
cise of  another,  and  these  call  still  dthirs  into  bting.  In  (he 
apt  words  of  Bryce :  "  Eacli  has  jinxhucd  a  progeny  of  sub- 
sidiary powers,  some  of  which  have  in  tluir  turn  !)een  surrounded 
by  an  unex|)ected  of[s])ring."  ' 

The  great  |)oint  to  be  remembered  in  this  connection  is  that 
all  these  various  impliiil  powers  come  to  the  nalional  goviTn- 
ment  by  judicial  construction.     Had  the  Supreme  Court  chosen, 

'Bryce,  "The  American  Commonwealth,"  New  and  Revised  Edition,  Vol.  I, 
p.  382. 


CONSTITUTIONAL   READJUSTMENT  THROUGH    LAW      301 

as  it  might,  to  accept  the  arguments  of  the  strict  construction- 
ists —  and  there  have  always  been  strict  construction  adher- 
ents in  the  United  States;  had  it  chosen  to  apply  the  strict 
letter  of  the  Constitution  and  not  the  spirit,  the  powers  of  the 
Nation  and  its  relation  to  the  States  would  be  vastly  different 
from  what  they  are.  American  history  would  not  read  as  it 
does.  With  such  an  ideal  of  national  union  as  the  strict  con- 
struction theory  called  for,  and  with  such  national  impotency 
as  it  would  have  made  inevitable,  the  strain  of  the  Civil  War 
could  never  have  been  withstood.  The  debt  of  the  Nation 
to  the  Supreme  Court  is  great. 

Supreme  Court  and  Constitutional  Expansion.  —  By  a  good 
many  persons  the  Supreme  Court  has  been  sharply  criticized 
for  the  part  it  has  had  in  the  adaptation  of  the  Constitution 
to  new  conditions,  and  the  consequent  enlargement  of  national 
power.  Thomas  Jefferson  spoke  for  a  host  of  followers  when 
he  said  that  the  Court  in  assuming  the  right  to  declare  legisla- 
tive acts  unconstitutional  has  usurped  a  supreme  power  which 
did  not  belong  to  it,  and  that  the  Constitution,  if  the  Court 
alone  can  explain  it  and  determine  its  meaning,  "  is  a  mere 
thing  of  wax  in  the  hands  of  the  judiciary  which  they  may 
twist  and  shape  into  any  form  they  please."  He  was  equally 
the  mouthpiece  of  a  multitude  when  he  asserted  that  the  federal 
judiciary  is  the  "  subtle  corps  of  sappers  and  miners  constantly 
working  under  ground  to  undermine  the  foundations  of  our 
confederated  fabric.  They  are  construing  our  Constitution 
from  a  coordination  of  a  general  and  special  government  to  a 
general  and  supreme  one  alone."  Though  the  Supreme  Court's 
critics  have  not  always  been  as  severe  in  their  comments  as 
was  Jefferson,  it  has  never  been  free  from  hostile  criticism.  It 
has  often  been  charged  as  guilty  of  "  judicial  legislation."  By 
this  is  meant  that  it  has,  through  its  power  to  construe  both 
Constitution  and  statutes,  read  into  them  things  that  were 
never  intended  by  the  framers  of  the  Constitution  or  by  Con- 
gress ;  and  by  so  doing,  the  assertion  is,  it  has  stepped  beyond 
the  proper  limits  of  judicial  power.  The  truth  of  the  general 
criticism  will  be  denied  by  few.  The  powers  of  the  Nation 
have  been  amplified,  and  those  of  the  States  have  been  restricted 
by  judicial  construction.  Statutes,  as,  for  example,  the  Sher- 
man antitrust  law,  have  been  given  meanings  not  intended  by 


302  COMPARATR-E   FREE   GOVERNMENT 

Congress.  The  results  of  this  have  been  profoundly  political. 
But  that  the  Supreme  Court  has  purposely  transformed  itself 
from  a  judicial  into  a  political  body,  and  has  maliciously,  or 
even  intentionally  invaded  the  province  of  either  the  legislative 
or  the  executive  department,  there  are  few  to  assert.  It  has 
never  sought  to  cripple  the  other  departments.  On  the  con- 
trary, it  has  striven  to  respect  and  protect  their  powers,  and  in 
an  admirable  manner  has  adhered  faithfully  to  the  judicial 
function  of  interpretation  and  construction.  The  critics  of 
the  Supreme  Court  have  too  frequently  been  misled  by  the  con- 
sequences of  its  work.  Those  consequences  oftentimes  have 
a  deep  political  significance ;  but  that  by  no  means  indicates 
that  the  court  was  actuated  by  political  motives.  It  has  with 
splendid  consistency  confined  itself  to  the  adjudication  of  the 
legal  and  constitutional  rights  involved  in  the  controversies 
before  it.  Its  record  is  not  perfect,  of  course,  —  the  judges  are 
men ;  but  to  the  impartial  observer  its  record  challenges  ad- 
miration, nevertheless. 

With  respect  to  the  part  which  the  Supreme  Court  takes  in 
the  modification  of  the  formal  Constitution',  it  is  to  be  borne 
in  mind  that  its  function  is  one  of  vital  necessity.  The  Con- 
stitution must  be  adapted  to  the  needs  of  the  Nation  and  keej) 
pace  with  its  growth.  In  part  this  readjustment  is  brought 
about  by  formal  amendments  and  by  processes  which  lie  out- 
side the  field  of  constitutional  authorization;  but  in  large  part 
it  must  continue  to  be  brought  about,  as  it  has  in  the  past,  by 
judicial  construction.  The  Constitution  is  a  living  thing  and, 
therefore,  a  changing  thing.  It  must  continue  to  live,  and  con- 
tinue to  grow  and  change,  unless  it  is  to  become  a  stumbling- 
block  in  the  way  of  the  Nation's  progress.  To  the  Supreme 
Court,  in  large  part,  falls  the  duty  of  elaborating  it  by  interpre- 
tation so  that  it  will  respond  adequately  to  the  demands  made 
upon  it  from  generation  to  generation.  The  powers  given  to 
the  national  government  by  the  express  grants  of  the  Constitu- 
tion are  the  same  now  as  they  were  in  the  beginning;  but  the 
express  powers  are  wholly  inadequate,  and,  as  new  conditions 
ari.se,  with  their  attendant  i)r()l)lems,  new  and  hitherto  unan- 
ticipated implied  powers  must  be  brought  to  light.  To  the 
Supreme  (Jourt,  therefore,  the  Nation  must  look  for  continu- 
ous elaboration  and  adaptation  of  its  fuiidanu'iital  law.     The 


CONSTITUTIONAL  READJUSTMENT  THROUGH  LAW      303 

necessity  of  this  is  apparent;  also,  its  danger  and  difl&culty. 
No  other  function  of  government  calls  for  broader  vision,  higher 
wisdom,  and  clearer  understanding  of  the  spirit,  ideals,  and 
principles  of  free  institutions.^ 

Development  through  Custom.  —  There  remains  to  consider 
the  third  way  in  which  constitutional  readjustment  is  accom- 
plished, other  than  by  formal  amendment,  namely,  custom  or 
usage.  Strictly  speaking,  of  course,  political  customs,  no  matter 
how  long  standing,  cannot  be  said  to  be  a  part  of  the  consti- 
tutional law  of  the  United  States.  In  case  of  a  clash  between 
a  venerated  custom  and  the  written  Constitution,  it  is  the  latter 
which  would  be  given  force  by  the  courts.  Nevertheless,  the 
formal  Constitution  has  been  materially  influenced  in  its  work- 
ing by  certain  customs  and  traditions.  Indeed,  custom  plays 
an  unusually  large  part  in  the  actual  operation  of  the  United 
States  government.  To  the  American,  as  well  as  to  the  foreigner 
unfamiliar  with  the  facts,  it  comes  with  somewhat  of  a  shock 
to  discover  how  profoundly  the  organization  and  the  processes 
of  government  have  been  affected  in  this  manner.  As  has 
been  pointed  out  in  previous  discussions,  the  constitutional 
system  set  up  in  the  United  States,  though  based  upon  vital 
experience,  was  almost  wholly  the  result  of  deliberate  choice, 
of  conscious  analysis.  From  the  very  first,  however,  changes 
began  to  occur  by  common  consent.  The  general  result  is  that 
customs  or  understandings  play  quite  as  large  a  part  in  the 
control  of  governmental  operations  in  the  United  States  as  they 
do  in  European  countries.  Even  in  England  the  customs  of  the 
constitution  are  hardly  more  important  than  are  those  of  the 
United  States.  Some  leading  examples  will  be  given  to  illus- 
trate their  force. 

The  most  consequential  development  that  has  come  about 
through  custom,  —  one  which  revolutionized  the  spirit  of  the 
constitutional  system,  —  is  the  development  of  the  political 
parties  with  their  vast  and  complicated  systems  of  organiza- 
tion. It  will  be  recalled  that  the  framers  of  the  Constitution 
were  opposed  to  parties  and  tried  and  ho[)ed  to  prevent  their 
rise.  Yet  parties  have,  almost  from  the  beginning,  dominated 
the  government  in  all  of  its  activities.     The  President,  contrary 

'  Wilson,  "  Constitutional  Government  in  the  United  States,"  p.  158.  For  con- 
trast as  shown  by  Australian  methods  see  below,  Chap.  XLV. 


304  COMPARATIVE  FREE   GOVERNMENT 

to  all  desire  and  expectation,  is  a  party  man,  and  not  only  that, 
but  the  leader  of  his  party.  Appointments  to  office  have  been 
largely  partisan  appointments,  and  are  so  still,  except  in  so  far 
as  they  are  now  controlled  by  civil  service  regulations.  Each 
house  of  Congress  is  organized  and  dominated  by  the  majority 
party.  Even  the  courts  come  within  the  range  of  party  influ- 
ence. Yet  all  this  is  without  constitutional  authorization  or 
even  recognition.  The  party  system  in  the  Nation  has  nothing 
but  custom,  long-standing  habit,  to  rest  upon.  Though  this 
system  is  not  a  part  of  the  formal  Constitution,  yet  it  is  clearly 
a  vital  part  of  the  real,  working  constitutional  system.  It  is 
sheer  nonsense  to  look  upon  it  in  any  other  way.  No  under- 
standing of  constitutional  government  in  the  United  States 
can  be  had  without  a  study  of  the  political  parties  and  their 
methods. 

Growing  out  of  the  existence  of  parties,  other  customs  of 
the  Constitution  have  developed.  One  of  the  most  notable 
is  that  by  which  the  constitutional  method  of  choosing  the 
President  has  been  set  aside,  and  there  has  been  substituted  for 
it  what  is  called  a  popular  election.  As  we  have  seen,  this  is 
not  a  strictly  poj)ular  election,  but  a  choice  by  States  through 
popular  elections.  It  is,  however,  a  strictly  party  election. 
The  presidential  electors  are  party  agents,  committed  in  advance, 
not  legally  but  morally,  to  vote  for  their  respective  party 
candidates  for  President  and  Vice  President.  The  whole 
electoral  college  scheme  has  been  transformed.  Yet  the  selec- 
tion of  the  President  by  a  popular  parly  vote  is  absolutely 
opposed  to  the  Constitution  as  it  was  in  the  beginning.  Of 
course  this  is  not  a  legal  modification  of  the  formal  Constitu- 
tion. The  electors  unquestionably  still  have  a  jierfect  legal 
and  constitutional  right  to  vote  for  others  than  their  i)arly 
candidates.  Hut  the  great  fact  is  that  they  do  not  vote  for 
others  and  have  not  done  so  since  parties  came  inlo  being.  The 
chaiige  that  has  occurred  is  vital  and  fundamental. 

Again,  the  position,  power,  and  influence  which  the  Speaker 
of  the  House  of  Ref)resentatives  has  come  lo  hold  is  in  no  way 
due  to  i)rovisions  of  the  written  Constitulion.  The  Constitu- 
tion neither  gives  him  j)owers  nor  assigns  him  duties.  It  merely 
declares  that  the  House  "shall  choose  their  own  Speaker,"  — 
a  de(  laration  which  li-lls  absolutely  nothing  about  him  and  his 


CONSTITUTIONAL  READJUSTMENT  THROUGH  LAW      305 

work.  And  even  this  simple  statement  has  been  rendered 
meaningless  by  custom,  for,  although  the  technical,  legal  elec- 
tion of  the  Speaker  is  by  the  House  of  Representatives,  the  real 
choice  is  made  by  the  caucus  of  the  majority  party.  Further- 
more, the  vast  influence  of  the  speakership  is  due  to  custom 
observed  by  the  House,  with  the  tacit  approval  of  the  people, 
and  to  rules  of  the  House's  own  making.  The  Constitution 
points  to  a  speakership  that  is  a  purely  parliamentary  office, 
but  it  is,  as  a  matter  of  fact,  a  party  institution. 

The  committee  system  maintained  by  the  Congress  affords 
another  excellent  example  of  how  inner,  vital  processes  of  gov- 
ernment are  controlled  by  agencies  which  lie  outside  the  Con- 
stitution. Each  house  of  Congress  legislates  by  means  of 
standing  committees.  No  legislation,  except  under  the  most 
extraordinary  conditions,  is  enacted  without  reference  to  com- 
mittees. The  committee  system  is  absolutely  central  in  the 
organization  of  each  house,  yet  it  is  unknown  to  the  Constitu- 
tion. It  rests  only  on  rules  of  the  houses  and  could  be  com- 
pletely destroyed  at  any  moment. 

The  party  caucus  is  another  important  extra-constitutional 
body.  Each  party  in  each  house  of  Congress  has  its  caucus. 
The  caucus  of  the  dominant  party  in  each  house  determines 
its  organization.  And,  as  has  been  pointed  out,  and  need  not 
be  elaborated  again,  the  very  content  and  form  of  important 
legislative  measures  may  be  finally  determined  in  the  caucuses 
of  the  majority  party,  so  that  the  action  of  the  houses  becomes 
a  mere  formality.  On  custom  alone  these  institutions  are 
based. 

The  President's  cabinet  is  an  unofficial  body,  based  on  cus- 
tom, and  lying  wholly  outside  the  Constitution.  The  Consti- 
tution recognizes  the  existence  of  heads  of  departments,  but 
there  is  nothing  in  it  to  suggest  a  cabinet.  Both  the  term 
"  cabinet  "  and  the  idea  it  suggests  were  almost  unknown  at 
the  time  the  Constitution  was  adopted.  The  cabinet,  a  collec- 
tive body  of  advisers  to  the  President,  is  the  outgrowth  of 
custom. 

Still  other  customary  practices  affecting  constitutional 
relations  may  be  mentioned  without  special  comment.  The 
Senate  controls  presidential  appointments  in  a  way  not  con- 
templated by  the  Constitution.     The  appointment  of  cabinet 


3o6  COMPARATIVE    FREE   GOVERNMENT 

officers,  however,  is  not  interfered  with  by  the  Senate.  The 
President  uses  the  veto  power  for  reasons  not  originally  in- 
tended. The  two-consecutive-term  tradition  has  become  pretty 
firmly  established  although  under  the  Constitution  a  president 
may  be  reelected  indefinitely.  Heads  of  departments  are  not 
permitted  to  participate  in  the  discussions  of  Congress,  though 
there  is  nothing  in  the  Constitution  to  prevent  their  doing  so. 
For  more  than  a  century  the  Presidents  observed  the  tradi- 
tion of  sending  written  messages  to  Congress  and  not  deliver- 
ing them  orally.  This  tradition,  however,  was  broken  by  Presi- 
dent Wilson,  who  restored  the  practice  of  Washington  and 
Adams.  Originating  revenue  legislation  is  only  nominally  an 
exclusive  power  of  the  House  of  Representatives. 

From  the  illustrations  given,  it  is  evident  that  custom  is  a 
significant  factor  in  the  operation  of  the  United  States  govern- 
ment. It  has  given  rise  to  institutions  and  practices  which 
have  affected  profoundly  the  Nation's  development  and  brought 
into  existence  some  of  the  Nation's  greatest  problems.  The 
fact  is  also  apparent  from  what  has  been  said  in  preceding  por- 
tions of  this  chapter,  that  custom  is  only  one  of  several  methods 
of  constitutional  readjustment  and  development.  By  amend- 
ments, by  supplemental  legislation,  by  judicial  construction, 
and  by  custom,  the  constitutional  system  has  been  elaborated 
and  modified  until  it  is  little  short  of  amazingly  different  from 
what  its  creators  designed  it  to  be.  By  these  different  processes 
the  skeleton  outline  of  government  given  in  the  written  Consti- 
tution has  been  filled  in  and  rounded  out  until  it  is  a  complete, 
workable,  efficient,  though  imperfect,  system.  By  the  same 
processes,  other  modifications  and  enlargements,  unforeseen 
at  i)resent,  will  be  made  in  the  years  to  come.  Constitutional 
development  must  go  on  as  long  as  the  Nation  lives. 

REFERENCES 

Bkard.     American  Govcrnnunl  and  Polilics,  Edition   1014,  Chap.  IV,  pp. 

72-77- 
Bkycm.     TIw  Amcriran  Commonwealth,  IMitinn  ujio,  Vol.  I,  (,'liaps.  XXXIII, 

XXXIV,  XXXV. 

TiKDKMAN.     The  Unwrillrn  Conslilittion  of  Ihr  United  States. 


CHAPTER  XXIV 

The   States  —  Constitutional   Position  and   Powers 

The  bed-rock  principle  of  the  constitutional  system  in  the 
United  States  is  that  of  federalism.  Indeed,  the  United 
States  is  the  most  conspicuous  example  of  federation  known 
to  history,  and  her  great  success  in  developing  a  unified,  effi- 
cient national  government  without  destroying  the  independence 
of  the  States  of  the  Union,  or  even  seriously  impairing  their 
autonomy,  constitutes  one  of  her  most  notable  contributions 
to  the  science  of  politics.  The  United  States  is  not  merely  a 
large  and  powerful  state  with  a  hundred  million  people,  gov- 
erned by  a  President,  a  Congress,  and  a  judiciary,  but  is  a  Union 
of  forty-eight  commonwealths  which  are  independent  of  one 
another  and  largely  independent  of  the  national  government, 
each  with  a  complete  governmental  organization  of  its  own. 
Understanding  of  the  nature  of  the  American  Union  and  the 
functions  of  the  commonwealths  which  form  it  is  absolutely 
essential,  therefore,  for  a  clear  comprehension  of  the  United 
States  government,  and  any  description  which  fails  to  include 
an  account  of  the  States  is  obviously  incomplete,  if  not  fallacious. 
It  is  necessary,  consequently,  to  give  at  least  brief  consideration 
to  the  States  and  their  governments. 

The  elementary  though  vital  fact  is  to  be  kept  in  mind  that 
the  national  government  is  one  with  conferred  or  limited  powers, 
and  that  the  States  possess  the  original  or  inherent  powers  of 
government.  Except  with  respect  to  those  powers  delegated 
exclusively  to  the  Nation  and  those  other  powers  definitely 
prohibited  to  the  States,  the  latter  possess  all  the  residual  powers 
of  government  and  may  use  them  as  they  please  as  long  as  the 
requirements  of  the  federal  Constitution  are  properly  observed. 
As  stated  in  the  first  chapter  of  this  book,  it  must  be  shown 
positively  that  a  power  has  been  prohibited  to  the  States  before 

307 


3o8  COMPARATIVE   FREE   GOVERNMENT 

its  exercise  can  be  denied  them,  whereas  in  the  case  of  the  na- 
tional government  it  must  be  shown  affirmatively  that  a  power 
has  been  conferred  by  the  Constitution  before  its  exercise  can 
be  considered  valid.  To  a  person  accustomed  to  a  unitary  gov- 
ernment and  unacquainted  with  the  conditions  surrounding 
the  formation  of  the  American  Union,  this  is  likely  to  appear 
a  reversal  of  the  proper  order;  to  such  the  logical,  natural 
arrangement  is  to  have  the  national  government  one  of  reserved 
powers  and  the  commonwealths  possess  only  delegated  author- 
ity.^ But  under  the  circumstances  which  prevailed  at  the  time 
the  Constitution  was  adopted,  the  American  arrangement  was 
not  only  logical,  but  inevitable.  The  States  already  existed. 
Each  one  had  a  fully  developed  governmental  organization 
and,  in  a  theoretic  sense,  at  least,  possessed  supreme  or  sovereign 
power.  If  a  national  government  were  to  be  created  with 
authority  to  control  even  only  a  few  matters  of  national  con- 
cern, it  could  be  done  only  on  condition  that  the  powers  in 
question  should  be  taken  from  the  States  and  transferred  to 
the  Nation.  The  States  had  all  the  powers  that  were  possible 
before  the  Constitution  was  adopted;  by  its  adoption  their 
powers  were  curtailed  and  some  of  those  which  they  formerly 
possessed  were  delegated  to  the  new  central  or  national  author- 
ity. Because  of  the  jealousies,  rivalries,  and  antagonisms,  which 
characterized  the  original  States  in  their  dealings  with  one 
another  prior  to  the  establishment  of  the  Constitution,  and 
because  of  the  devotion  of  the  people  to  their  respective  State 
governments,  a  full  surrender  of  the  latter's  inherent  powers 
was  an  impossible  action.  The  utmost  that  could  be  reason- 
ably hoped  for  was  the  delegation  to  the  Nation  of  sufficient 
power  to  enable  it  to  control  in  matters  that  were  national  or 
interstate  in  character;  all  local  or  intrastate  questions  must 
lie  within  the  control  of  the  States  themselves.  Thus  the 
constitutional  i)osilioii  of  the  States  in  their  relation  to  the  Na- 
tion was  dictated  by  the  (ondilions  which  gave  rise  to  the  need 
for  a  new  and  cllu  icnt  (ciitral  government. 

The  Equality  of  the  States.  —  As  a  natural  c oiiseciucnce  of 
the  conditions  which  governed  in  the  formation  of  the  Union, 
the  States  have  a  position  of  perfect  equality  under  the  Consti- 
tution.    Consent  to  the  establishment  of  the  new  government 

*  Sue  discussion  of  Ciiiiadu  and  Australia,  Chap.  XLV. 


CONSTITUTIONAL   POSITION  AND   POWERS  OF  STATES      309 

could  be  obtained  on  no  other  basis.  Moreover,  this  equality 
in  law  belongs  to  the  States  admitted  to  the  Union  since  the 
adoption  of  the  Constitution  as  well  as  to  the  original  States. 
A  restriction  which  rests  upon  one,  rests  upon  all  alike ;  a 
power  possessed  by  one  belongs  to  the  others  in  equal  degree. 
In  theory  it  must  be  held  that  the  powers  of  the  national  gov- 
ernment come  from  the  States  admitted  to  the  Union  by  na- 
tional authority  to  the  same  extent  as  from  the  States  that  were 
in  fact  responsible  for  the  setting  up  of  the  Constitution.  To  the 
admitted  States  as  well  as  to  the  original  States  belong  the 
inherent  powers  of  government.  No  distinction  is  or  can  be 
made.  In  the  words  of  the  Supreme  Court,  a  State  upon  its 
admission  to  the  Union  "  becomes  entitled  to  and  possesses  all 
the  rights  of  dominion  and  sovereignty  which  belong  to  the  orig- 
inal States."  ^ 

It  is  true  that  in  admitting  a  number  of  States  Congress 
has  sought  to  impose  restrictions  and  exact  promises  which 
were  to  be  considered  binding  upon  the  States  thus  pledged 
until  they  were  freed  from  their  obligation  by  some  prescribed 
process.  It  was  required  of  Ohio  and  a  number  of  other  States, 
for  instance,  that  they  should  agree  not  to  tax  for  a  period  of 
years  all  public  lands  sold  by  the  United  States.  Missouri 
was  forced  to  declare  that  its  legislature  under  authority  of  the 
State  constitution  should  never  be  permitted  to  enact  a  law 
denying  to  the  citizens  of  other  States  any  of  the  privileges  and 
immunities  conferred  on  them  by  the  federal  Constitution. 
It  was  demanded  of  Nevada  that  her  constitution  should  be  in 
accord  with  the  Declaration  of  Independence  and  that  persons 
should  not  be  denied  the  right  to  vote  on  account  of  their 
color.  Of  Nebraska  it  was  required  that  the  voting  privilege 
should  not  be  denied  because  of  race  or  color,  Indians  excepted. 
Utah  was  required  to  provide  for  religious  toleration,  public 
schools  free  from  sectarian  control,  and  the  abolition  of  polyg- 
amy. 

The  restraints  which  Congress  has  sought  to  impose  upon 
States  at  the  time  of  admission  are  of  two  kinds,  "  those  that 
attempt  to  place  the  State  under  political  restrictions  not  im- 
posed upon  all  the  States  of  the  Union  by  the  federal  Constitu- 
tion, and  those  which  seek  the  future  regulation  of  private,  pro- 

*  BoUn  V.  Nebraska,  176  U.  S.  83  (1900). 


3IO  COMPAR.\TIVE   FREE   GOVERNIMENT 

prietary  interests."  ^  These  are  vitally  different  from  the  point 
of  view  of  enforceability.  The  political  restrictions  are  not  en- 
forceable. The  Supreme  Court  has  so  ruled  upon  repeated 
occasions.  When  a  State  is  once  admitted  to  the  Union  it 
cannot  be  subject  to  political  restraints  which  are  not  obligatory 
upon  all  the  States  alike.  The  powers  of  the  States  are  identical. 
A  Territory  seeking  statehood  may  be  forced  to  accept  condi- 
tions imposed  by  Congress  that  involve  political  restrictions, 
but  when  it  becomes  a  State  it  may  disregard  those  conditions 
if  it  chooses.  A  recent  illustration  is  found  in  the  case  of  Arizona 
which  was  forced  to  modify  its  proposed  constitution,  partic- 
ularly with  respect  to  the  recall  of  judges,  before  Congress 
would  give  its  approval.  The  authority  of  Arizona,  however, 
as  of  any  other  State,  to  provide  for  the  recall  of  judges  is  beyond 
question.  Restrictions  of  this  kind  are  simply  of  no  force. 
If  they  were  of  force,  the  equality  of  the  States  under  the  Con- 
stitution would  be  destroyed.  The  second  kind,  however,  those 
relating  to  the  regulation  of  private,  proprietary  interests,  arc 
enforceable  and  the  Supreme  Court  has  so  declared.  Such 
restrictions  amount  merely  to  agreements  between  a  State  and 
the  Nation,  constituting  valid  contracts  which  are  binding, 
but  which  in  no  way  impair  the  political  equality  of  the  States." 
Decline  in  State  Prestige.  —  It  is  essential  to  note  that 
though  there  is  constitutional  equality  among  the  States,  yet 
relatively  the  States  are  not  now  so  important  as  the  original 
States  were  in  1789.  With  the  growth  of  the  Nation's  power  and 
inllucnce,  the  States  have  declined  in  prestige.  They  are  still 
vital,    imperatively    necessary   elements    in    the   constitutional 

>  Willoughby,  "  Constitutional  Law  of  the  United  States,"  Vol.  I,  p.  240.  The 
above  statement  conccrninK  the  attitude  of  Congress  is  based  on  Professor  Wil- 
louKhby's  discussion. 

2  Professor  WillouKhby,  ujxjn  this  point,  cites  as  "most  illuminatinR"  the  com- 
paratively recent  case  of  Stearns  v.  Miinicsola,  170  U.  S.  22.5  (i<)Oo).  "That  case 
involved  the  construction  and  application  of  an  agreement  made  by  the  State  with 
the  United  States  at  the  time  of  its  a<imission  to  the  Union,  with  reference  to  public 
lands,  within  its  boundaries,  owned  by  the  United  States.  The  court  in  its  opinion 
says:  'That  these  provisions  of  the  Enabling  Act  and  the  Constitution,  in  form  at 
least,  made  a  compact  between  the  Unite<l  States  and  the  State,  is  evident.  In  an 
inquiry  as  to  the  validity  of  such  a  compact  this  distinction  must  at  the  outset  be 
noticed.  There  may  be  agreements  or  compacts  attempted  to  be  entered  into 
between  two  States,  or  between  the  State  and  the  Nation,  in  reference  to  iwlitical 
rights  and  obligati(ins,  and  there  may  be  those  solely  in  refcreme  to  property  be- 
longing to  one  or  to  the  other.  That  dilTcrent  considerations  may  underlie  the 
question  as  to  the  validity  of  these  two  kinds  of  compacts  or  agreements  is  obvious. 


CONSTITUTIONAL  POSITION  AND  POWERS  OF  STATES      311 

system,  since  without  them  the  national  government  could  not 
exist,  but  they  do  not  hold  the  central  place  in  the  affections 
of  the  people  which  they  once  did.  At  the  time  of  the  adoption 
of  the  Constitution  practically  the  whole  of  the  people's  loyalty 
was  given  to  their  respective  States.  In  the  beginning  the 
Nation  received  little  or  no  devotion  from  the  masses  and  had 
no  real  place  in  their  political  consciousness.  The  States 
towered  above  the  Nation,  the  latter  being  looked  upon  generally 
as  merely  the  agent  of  the  former  for  the  control  of  certain 
questions  which  were  of  common  concern  and  which  the  States 
acting  separately  could  not  settle  satisfactorily.  Service  of 
the  States  was  quite  commonly  looked  upon  as  of  higher  dignity 
and  honor  than  service  of  the  new  central  government.  Not 
infrequently  men  resigned  from  high  places  in  the  national 
government  to  accept  offices  in  the  States.  The  governorship 
of  a  State  was  everywhere  looked  upon  as  superior  to  member- 
ship in  the  United  States  Senate.  This  attitude  of  the  people 
was  natural  under  the  circumstances,  and  nothing  else  could 
reasonably  be  expected.  But  a  striking  and  fundamental 
change  has  taken  place,  and  now  the  Nation  is  most  distinctly 
first  in  the  regard  of  the  people.  This  has  long  been  true,  and 
particularly  so  since  the  great  Civil  War,  which  put  an  end  to 
the  extreme  States'  rights  doctrine,  gave  a  tremendous  impetus 
to  nationalism,  and  settled  for  all  time  the  question  of  whether 
the  Union  is  of  the  confederate  or  federal  type.  The  spirit 
of  nationalism  has  developed  steadily  from  the  beginning. 
With  its  growth,  the  relative  importance  of  the  States,  and,  to 
a  considerable  degree,  their  actual  political  power,  have  de- 
clined. 

It  has  often  been  said  that  a  State  admitted  into  the  Union  enters  therein  in  full 
equality  with  all  the  others,  and  such  equality  may  forbid  any  agreement  or  compact 
limiting  or  qualifying  political  rights  and  obligations;  whereas,  on  the  other  hand, 
a  mere  agreement  in  reference  to  property  involves  no  question  of  equality  of  status, 
but  only  of  the  power  of  a  State  to  deal  with  the  Nation  or  with  any  other  State  in 
reference  to  such  property.  The  case  before  us  is  one  involving  simply  an  agree- 
ment as  to  property  between  a  State  and  the  Nation.  That  a  State  and  the  Nation 
are  competent  to  enter  into  an  agreement  of  such  a  nature  with  one  another  has  lieen 
affirmed  in  past  decisions  of  this  Court,  and  that  they  have  been  frequently  made  in 
the  admission  of  new  States,  as  well  as  subsequently  thereto,  is  a  matter  of  history. 
.  .  .  We  are  of  the  opinion  that  there  was  a  valid  contract  made  with  these  com- 
panies in  respect  to  the  taxation  of  these  lands,  —  a  contract  which  it  was  beyond 
the  power  of  the  State  to  impair ;  that  this  subsequent  legislation  does  impair  that 
contract  and  cannot,  therefore,  be  sustained. '"  —  "  Constitutional  Law  of  the  United 
States,"  Vol.  I,  pp.  242-243. 


312  COMPARATRE   FREE   GOVERNMENT 

Two  significant  facts  may  be  suggested  as  partial  explanation 
of  this  decline.  The  first  is  the  rapid,  revolutionizing  industrial 
development  of  the  United  States,  with  its  attendant  problems, 
dangers,  and  ev^ils.  This  has  involved  fundamental,  far-reach- 
ing changes  in  the  life  of  the  people  and  in  the  relations  of  the 
States  to  the  Nation,  the  true  significance  of  which  is  by  no 
means  fully  comprehended  even  now.  It  must  be  remembered 
that  the  industrial  life  of  America  in  1789,  and  for  many  years 
thereafter,  was  very  simple  and  easily  regulated  as  compared 
u-ith  that  of  to-day.  The  people  were  for  the  most  part  agri- 
culturists, and  manufacturing  industries  were  both  small  in 
size  and  few  in  number.  Industry  and  trade  were  essentially 
local  or  intrastate  in  character  and  accordingly  could  be  elTec- 
tively  controlled  by  the  States.  Interstate  and  foreign  com- 
merce, it  is  true,  were  becoming  of  increasing  value  and  com- 
plexity, and,  consequently,  the  source  of  difficulties  which  were 
hard  for  the  States  to  settle ;  but,  nevertheless,  the  transfer 
from  the  States  to  the  Nation  of  the  control  over  both  interstate 
and  foreign  commerce,  important  as  they  were,  did  not  at  the 
time  tend  to  undermine  seriously  the  States'  authority  or  divert 
popular  interest  and  loyalty  from  them  to  the  newly  established 
national  government.  But  with  the  development  of  the  vast 
railway  systems,  reaching  into  every  corner  of  the  land,  and 
the  growth  of  multitudes  of  industrial  corporations,  large  and 
small,  engaged  in  interstate  and  foreign  trade,  a  new  industrial 
order  has  come  into  being.  The  elTect  of  this  upon  the  polit- 
ical life  of  the  States  and  of  the  Nation  has  already  been  pro- 
found ;  and  the  ultimate  consequences  are  still  to  be  revealed. 
Readjustments  and  more  or  less  of  redistribution  of  political 
powers  were  inevitable,  regardless  of  the  letter  of  the  Constitu- 
tion or  the  intention  of  its  makers.  By  the  very  force  of  cir- 
cumstances and  the  nature  of  their  needs  the  people  have  been 
comi)elled  to  look  more  and  more  to  the  national  authority  for 
reUef  and  protection  from  corporate  abuses  and  moiioi)olistic 
greed  and  oppression.  The  result  has  been  a  weakening  of  the 
States  and  a  strengthening  of  the  Nation.  Power  has  been 
transferred  from  the  one  to  the  other,  with  a  consequent  loss 
of  prestige  by  the  States.  In  the  field  of  national  politics  now 
lies  the  largest  op[)ortunity  for  statesmanshij)  and  leadership, 
as  far  as  industrial  afiairs  arc  concerned.     However,  it  should 


CONSTITUTIONAL  POSITION  AND  POWERS  OF  STATES      313 

be  noted,  signs  are  not  lacking  that  the  pendulum  may  swing 
somewhat  in  the  other  direction.  In  very  recent  years  there 
has  been  a  sort  of  rejuvenation  of  the  States  through  the  agita- 
tion for  a  more  democratic  governmental  organization  and  a 
larger  exercise  of  their  police  powers  in  the  promotion  of  social 
welfare  policies.  The  opportunity  thus  afforded  is  proving 
attractive  to  men  of  vision  and  high  abihties,  and  may  cause 
the  States  to  regain  some  of  their  lost  glory  and  influence. 

The  second  fact  which  beyond  question  has  had  a  good  deal 
to  do  with  the  relative  decline  of  the  States  is  the  artificiality 
of  many  State  boundaries,  with  the  consequent  arbitrary  divi- 
sion politically  of  communities  and  regions  which  properly  belong 
together.  The  States  as  a  rule  are  not  natural  economic  and 
social  units.  The  influence  of  this  fact  upon  the  pohtical  ac- 
tivities of  the  States  is  obvious.  It  tends  not  only  to  eliminate 
dissimilar  features  in  the  State  governments  and  promote  uni- 
formity, but  also  to  make  the  people  willing  to  have  the  common 
central  government  act  in  the  place  of  their  respective  States. 
If  a  problem  is  common  to  all  or  many  of  the  States,  and  since 
a  uniform  solution  is  desirable,  what  is  more  natural  than  to 
look  to  the  national  government  for  that  solution,  even  though 
the  problem,  under  the  letter  of  the  Constitution,  lies  within 
the  province  of  the  States  and  not  of  the  Nation?  It  is  easy 
to  overemphasize  the  potency  of  an  influence  Hke  that  under 
discussion,  and  the  suggestion  must  not  be  carried  too  far ;  but 
that  the  artificiality  of  State  boundaries  and  the  lack  of  social 
and  economic  distinctions  among  the  States  tend  to  make  the 
American  people  somewhat  complacent  in  the  face  of  a  transfer 
of  political  power  from  the  States  to  the  Nation  can  hardly  be 
disputed. 

Besides,  the  people  are  accustomed  to  the  same  artificiality 
and  to  a  high  degree  of  central  control  in  their  local  government 
units,  particularly  the  counties  and  townships.  The  normal 
township  is  a  block  of  territory  six  miles  square  and  its  bound- 
aries are  wherever  the  surveyors'  lines  happened  to  run,  regard- 
less of  economic,  social,  or  geographical  considerations.  The 
county  is  a  large  district,  with  equally  artificial  boundaries, 
composed  of,  say,  sixteen  townships.  These  local  units  are 
mere  divisions  and  subdivisions  of  the  State  and  in  their  polit- 
ical activities  are  controlled  bv  State  laws.     Tlie  natural   influ- 


314  COMPARATIVE   FREE  GOVERNMENT 

ence  of  these  local  adjustments  is  to  tend  to  make  the  people 
satisfied  to  have  the  States,  which  are,  after  all,  only  divisions 
of  the  Nation,  more  or  less  under  the  control  of  the  national 
authority- 
Relation  of  the  States  to  One  Another.  —  Frequent  reference 
has  been  made  to  the  fact  that  the  States  are  independent  of 
one  another.  This  is  a  fact  of  significance  and  is  entirely  true 
with  respect  to  the  operation  of  their  own  local  laws.  The 
authority  of  each  State  ceases  absolutely  at  its  boundaries,  how- 
ever artificial  they  may  be.  The  States  are  not,  however,  in 
the  position  of  true  foreign  states,  because  their  relations  with 
one  another,  so  far  as  they  may  have  such  relations,  are  con- 
trolled by  the  federal  Constitution.  Four  important  constitu- 
tional provisions  in  this  connection  are  to  be  noted.  The  first 
requires  each  State  to  give  full  faith  and  credit  to  the  public 
acts,  records,  and  judicial  proceedings  of  every  other  State ; 
the  second  provides  that  the  citizens  of  each  State  are  entitled 
to  all  the  privileges  and  immunities  of  citizens  in  the  several 
States ;  the  third  requires  that  a  person  who  is  charged  in  any 
State  with  a  crime  and  who  flees  from  justice  and  is  found  in 
another  State,  shall  upon  the  demand  of  the  executive  authority 
of  the  State  from  which  he  has  fled,  be  returned  to  the  State 
having  jurisdiction  of  the  crime ;  and  the  fourth  provides  that 
no  Stale  shall,  without  the  consent  of  Congress,  enter  into  any 
agreement  or  compact  with  another  State,  or  with  a  foreign 
power.  It  is  also  to  be  noted  that  the  States  arc  prohibited 
absolutely  from  entering  into  any  treaty,  alliance,  or  confedera- 
tion. 

These  constitutional  restrictions  and  requirements  make 
plain  the  fact  that  the  States  cannot  do  as  they  please  in  their 
dealings  with  one  another.  It  should  be  clear  that  the  full 
faith  and  credit  clause  applies  only  to  ci\il  judgments.  The 
[)enal  laws  of  a  State  are  without  force  in  the  other  States  and 
no  State  is  under  obligation  to  help  enforce  the  criminal  laws 
of  another.  Concerning  this  point  thf  Suj)reme  Court  says: 
"  The  rules  that  the  courts  of  no  countr\'  execute  the  penal  laws 
of  another  applies  not  only  to  prosecutions  and  .sentences  for 
crimes  anrl  misdemeanors,  but  to  all  suits  in  favor  of  the  State 
for  the  recovery  of  pecuniary  j)enalties  for  any  violation  of 
statutes  for  the  protection  of  its  revenue,  or  other  inunici])al 


CONSTITUTIONAL   POSITION   AND   POWERS  OF  STATES      315 

laws,  and  to  all  judgmenls  for  such  penalties.  If  this  were  not 
so,  all  that  would  be  necessary  to  give  ubiquitous  effect  to  a 
penal  law  would  be  to  put  the  claim  for  a  penalty  into  the  shape 
of  a  judgment."  ^  The  fact  that  each  State's  authority  comes 
to  an  end  at  its  own  boundaries  and  that  its  laws  are  without 
force  in  another  State  becomes  particularly  important  in  con- 
nection with  violations  of  its  criminal  laws.  "  A  crime  is  to 
be  punished  if  committed  against  the  laws  of  a  State  only  within 
the  Hmits  of  that  State,  and  the  courts  of  another  State  cannot 
take  cognizance  of  such  a  crime  for  purposes  of  punishment ; 
nor  has  any  State  the  authority  to  send  its  officers  into  another 
State  for  the  purpose  of  arresting  and  bringing  back  a  fugitive 
from  justice,  save  as  provided  by  the  federal  constitution."  ^ 
Under  the  constitutional  regulation  it  is  the  duty  of  the  execu- 
tive of  a  State  to  which  a  criminal  has  fled  to  dehver  him,  upon 
proper  request,  to  the  executive  of  the  State  in  which  the  crime 
was  committed.  It  is  a  noteworthy  fact,  however,  that  there 
is  no  way  to  compel  the  performance  of  this  duty.  It  is  for 
the  Governor  of  a  State,  and,  under  the  accepted  rule,  for  him 
alone,  to  say  whether  a  fugitive  from  justice  shall  be  delivered 
up.  If  extradition  is  refused,  the  State  requesting  it  has  no 
redress.  Congress  has  by  law  regulated  the  extradition  of 
criminals,  but  no  remedy  is  provided  in  case  of  a  refusal  to  sur- 
render the  accused  person.  Neither  by  State  nor  national 
judicial  process  can  a  governor  be  compelled  to  act.  If  he  takes 
action,  however,  this  may  be  reviewed  by  the  courts. 

That  the  commonwealths  of  the  Union  do  not  have  toward 
one  another  the  status  of  sovereign  foreign  states  is  made  clear 
by  the  absolute  denial  by  the  Constitution  of  their  right  to 
enter  into  any  treaty,  alliance,  or  confederation,  and  by  the 
requirement  that  no  State  shall,  without  the  consent  of  Congress, 
form  any  agreement  or  compact  with  another  State  or  with  a 
foreign  power.  As  far  as  treaties  with  foreign  powers  arc  con- 
cerned, and  participation  by  the  States  in  the  control  of  inter- 
national relations,  these  constitutional  provisions  are  wholly 
unnecessary,  because  the  management  of  the  nation's  foreign 
relations  rests  exclusively  with  the  national  government.  The 
absolute  prohibition  of  alliances  or  confederations  among  the 

■  Wisconsin  v.  Pelican  Insurance  Company,  127  U.  S.  265  (1888). 

*  McCIain,  "  Constitutional  Law  in  the  United  States,"  Second  Edition,  p.  269. 


3i6  coMPARj\Ti\i';  iRi-:i-:  ciovkrnment 

States,  and  the  introduction  of  the  qualifying  clause,  "  without 
the  consent  of  Congress,"  with  respect  to  compacts  or  agree- 
ments, are  points  which  deserve  some  emj:»hasis.  The  effect 
of  the  two  provisions  is  to  make  it  possible  for  the  States,  if 
they  have  the  approval  of  Congress,  to  enter  into  compacts 
with  one  another,  providing  such  compacts  do  not  constitute 
aUiances  or  confederations,  as  those  terms  are  used  in  political 
language.'  The  political  significance  of  the  compact  is  what 
brings  it  under  the  restriction,  for  the  Supreme  Court  has  held 
that  there  are  some  things  which  may  be  the  subjects  of  agree- 
ments which  may  be  entered  into  without  the  consent  of  Con- 
gress. As  illustrating  these,  the  court  suggests  that  it  would 
be  the  height  of  absurdity  to  hold,  for  instance,  that  States 
threatened  by  the  spread  of  deadly  diseases  could  not  unite  to 
provide  means  to  prevent  disaster  without  first  obtaining  the 
consent  of  Congress,  which  might  not  at  the  time  be  in  session. 
It  goes  on  to  say  that  "  it  is  evident  that  the  prohibition  is 
directed  to  the  formation  of  an\-  combination  tending  to  the 
increase  of  political  power  in  the  States,  which  may  encroach 
upon  or  interfere  with  the  just  supremacy  of  the  United  States."  ^ 
The  object  of  the  restriction  is,  thus,  to  prevent  the  States, 
through  agreements  among  themselves,  from  undermining  na- 
tional authority.  The  power  of  the  Nation  must  be  maintained 
intact.  Its  supremacy  in  the  sphere  set  for  it  by  the  Constitu- 
tion is  neither  to  be  fiut'stioned  nor  interfered  with. 

Relation  between  States  and  Nation. — ^  In  this  connection 
it  is  proper  to  call  attention  to  \hv  obligation  which  the  States 
are  under  to  accord  full  respect  to  the  agencies  and  organs  of 
the  federal  government.  The  functions  of  the  latter  are  per- 
formed through  its  own  officers,  who  are  not  to  be  interfered 
with  in  any  way  by  action  of  a  State.  It  is  to  be  remcmljcrcd 
that  though  the  powers  of  the  federal  government  arc  limited  in 
number,  yet  in  the  case  of  each  one  of  these  powers  its  authority 
is  absolute.  This  means  that  the  States  may  not  hinder  the 
national  go\'ernment  in  the  utili/.ation  of  its  powers  or  federal 
officers  in  the  discharge  of  liicir  ofTicial  duties.  The  agencies 
created  by  the  federal  go\'ernimnt  for  the  |)erforniance  of  its 
work  under  the  Constitution  cannot  be  subject  to  the  control 

•  Willouxhliy,  "  Cunstilutional  Law  of  the  United  States,"  \'ul.  1,  p.  2S5- 
'  VirKinia  v.  Tennessee,  148  U.  S.  503  (i8yj). 


CONSTITUTIONAL  POSITION  AND   PO\\'ERS  OF  STATES      317 

of  any  State  or  group  of  States.  If  such  control  could  be  exer- 
cised, efficiency  in  national  administration  would  be  impossible. 
For  illustration,  the  States  may  not  tax  the  instrumentahties 
of  the  federal  government.  This  was  settled  by  the  Supreme 
Court  in  the  well-known  case  of  McCulloch  v.  Maryland,  in 
which  the  principle  of  non-interference  with  federal  agencies 
was  definitely  asserted.  In  the  words  of  the  court:  "If  the 
States  may  tax  one  instrument  employed  by  the  government 
in  the  execution  of  its  powers,  they  may  tax  any  and  every 
instrument.  They  may  tax  the  mail ;  they  may  tax  the  mint ; 
they  may  tax  patent  rights ;  they  may  tax  the  papers  of  the 
custom-house ;  they  may  tax  judicial  processes ;  they  may 
tax  all  the  means  employed  by  the  government  to  an  excess 
which  would  defeat  all  the  ends  of  government.  This  was 
not  intended  by  the  American  people.  They  did  not  design 
to  make  their  government  dependent  on  the  American  States." 
The  general  principle  of  non-interference  with  federal  agencies 
by  the  States  is  given  emphatic  expression  in  the  statement  of 
the  court's  conviction  that  "  the  States  have  no  power,  by  taxa- 
tion or  otherwise,  to  retard,  impede,  burden,  or  in  any  manner 
control  the  operations  of  the  constitutional  laws  enacted  by 
Congress  to  carry  into  execution  the  powers  vested  in  the  gen- 
eral government."  ' 

On  the  other  hand,  the  federal  government  may  not  interfere 
with  the  officers  or  agencies  of  the  States  in  the  performance  of 
duties  which  come  within  the  constitutionalpowers  of  the  States. 
The  same  reasoning  which  leads  to  the  conclusion  that  the  States 
may  not  interfere  with  the  Nation  in  its  work,  leads  to  the  con- 
clusion that  the  Nation  may  not  hinder  the  States.  The  effi- 
ciency of  the  States  in  the  discharge  of  their  constitutional 
functions  is  dependent  upon  their  freedom  of  action.  For  the 
Nation  to  tax  or  otherwise  burden  the  agencies  of  the  States 
would  be  to  undermine,  if  not  destroy,  the  States  themselves; 
yet  the  existence  of  the  States  is  essential  to  the  existence  of 
the  Nation,  and  in  impairing  them,  the  Nation  would  be  doing 
injury  to  itself.  The  argument  may  be  stated  again  in  the  words 
of  the  Supreme  Court :  "  If  the  means  and  instrumentalities 
employed  by  that  [the  general]  government  to  carry  into  oper- 
ation the  powers  granted  to  it  are,  necessarily,  and,  for  the 

I  4  Wheaton  316  (1819). 


3l8  COMPAR-\TIVE   FREE    GOVERNMENT 

sake  of  self-preservation,  exempt  from  taxation  by  the  States, 
why  are  not  those  of  the  States  depending  upon  their  reserved 
powers,  for  hke  reasons,  equally  exempt  from  federal  taxation? 
Their  unimpaired  existence  in  the  one  case  is  as  essential  as  in 
the  other.  It  is  admitted  that  there  is  no  express  provision  in 
the  Constitution  that  prohibits  the  general  government  from 
taxing  the  means  and  instrumentalities  of  the  States,  nor  is 
there  any  prohibiting  the  States  from  taxing  the  means  and 
instrumentalities  of  that  government.  In  both  cases  the  exemp- 
tion rests  upon  necessary  imphcation,  and  is  upheld  by  the  great 
law  of  self-preservation,  —  as  any  government,  whose  means 
employed  in  conducting  its  operations,  if  subject  to  the  con- 
trol of  another  and  distinct  government,  can  only  exist  at  the 
mercy  of  that  government.  Of  what  avail  are  these  means 
if  another  power  may  tax  them  at  discretion?  "  ' 

The  constitutional  position  of  the  States  thus  invohos  a 
large  sphere  of  independent  action  and  freedom  from  national 
interference  in  the  performance  of  their  legitimate  functions. 
But  this  independence  is  not  without  restriction.  The  States 
are  under  the  same  obligation  to  respect  the  authority  of  the 
Nation  as  the  latter  is  to  respect  their  authority.  Without  the 
States,  the  Nation  would  perish ;  without  the  Nation,  the  States, 
though  they  might  continue  to  live,  would  be  weak  and  in- 
efficient. 

REFERENCES 

Beard.     American  Government  and  Politics,  Edition  1914,  Chap.  XXIT. 
Bryce.     The  American  Commomcealtli,  IMition  1910,  Vol.  I,  Chaps.  XXXVI, 

XXXVII,  xxxviir. 

Cooi.KY.     Constitutional  La'u%  Chaps.  X,  XI. 

McClain.     Constitutional  Law  in  the  United  States,  Cha[).  XXXIII. 

^Collector  V.  Day,  11  Wallace  113  (1871). 


CHAPTER  XXV 

The  States  —  Suffrage  and  Citizenship 

The  point  has  been  made  that  the  federal  government  carries 
on  its  work  through  its  own  officers,  and  is  not  dependent  on 
the  States  for  the  performance  of  its  functions.  This  is  quite 
true,  yet  it  could  not  Hve  without  the  States,  and  in  certain 
respects  is  wholly  dependent  upon  them.  The  voting  privilege, 
for  instance,  is  under  the  control  of  the  States,  yet  members  of 
both  houses  of  Congress  are  chosen  by  popular  vote.  The  right 
of  suffrage  is  not  held  under  national  authority;  the  Nation 
has  nothing  to  say  as  to  who  shall  vote  and  who  shall  not.  The 
only  regulations  in  the  federal  Constitution  relating  to  suffrage 
are  those  found  in  the  fourteenth  and  fifteenth  amendments, 
which  were  enacted  as  a  result  of  the  aboHtion  of  slavery.  In 
the  first  of  these  it  is  provided  that  if  the  right  to  vote  for  presi- 
dential electors,  members  of  Congress,  State  executives  and 
legislative  officers,  is  denied  in  any  State  "  to  any  of  the  male 
inhabitants  of  such  State,  being  twenty-one  years  of  age,  and 
citizens  of  the  United  States,  or  in  any  way  abridged,  except 
for  participation  in  rebellion,  or  other  crime,"  the  basis  of  repre- 
sentation in  the  Congress  shall  be  reduced  "  in  the  proportion 
which  the  numl^er  of  such  male  citizens  shall  bear  to  the  whole 
number  of  male  citizens  twenty-one  years  of  age  in  such  State." 
In  the  second  it  is  provided  that  the  right  of  citizens  of  the 
United  States  to  vote  shall  not  be  denied  or  abridged,  either 
by  the  United  States  or  by  any  State  on  account  of  race,  color, 
or  previous  condition  of  servitude.  These  amendments  were 
adopted  soon  after  the  Civil  War  and  were  clearly  designed  to 
protect  the  Negroes  in  the  enjoyment  of  their  newly  acquired 
rights.  They  in  no  sense  deprive  the  States  of  control  over 
suffrage.  It  is  for  the  States  to  say,  subject  to  the  restrictions 
noted,  who  shall  vote  and  what  franchise  tests  shall  be  estab- 
lished.    They  may  provide  property  qualifications  for  voting 

319 


320  COMPARATIVE   FREE   GOVERNMENT 

if  they  wish,  although  requirements  of  this  nature  have  been 
almost  entirely  done  away  with.  They  may  confer  suffrage 
upon  women,  as  a  number  of  them  have  done,  or  upon  alien 
residents  who  have  not  yet  become  naturalized  citizens  under 
federal  law.^ 

Suffrage  and  National  Elections.  —  The  point  of  interest  to 
take  note  of  here,  from  the  standpoint  of  the  Nation,  is  that  the 
right  to  vote  at  State  elections,  resting  wholly  upon  State  law, 
carries  with  it  the  right  to  vote  at  all  elections  of  national  offi- 
cers. In  the  case  of  members  of  the  House  of  Representatives, 
the  only  national  officers  made  elective  by  the  original  Consti- 
tution, it  was  provided  that  the  electors  participating  in  their 
election  should  have  "  the  qualifications  requisite  for  electors 
of  the  most  numerous  branch  of  the  State  legislature."  Uni- 
formity in  the  franchise  qualifications  in  the  several  States 
is  manifestly  not  required.  Each  State  may  do  as  it  pleases, 
subject  only  to  the  requirements  of  the  fifteenth  amendment. 
Women  may  vote  in  one  State,  for  instance,  and  be  debarred 
from  voting  in  another.  If  they  are  permitted  to  vote  for 
members  of  the  "  most  numerous  branch  "  of  the  State  legis- 
lature, they  may  vote  for  members  of  Congress.  The  right  of 
women  to  vote  for  presidential  electors,  however,  does  not  fol- 
low the  right  of  suffrage  for  members  of  the  State  legislature. 
Under  the  Constitution  the  method  of  selecting  presidential 
electors  is  left  wholly  to  the  legislatures  of  the  States.  Their 
selection  by  popular  vote  is  not  required.  Consequently  it 
is  entirely  permissible  for  the  legislatures  to  admit  women  to 
the  suffrage  for  local  and  State  officers  and  deny  them  jxirtic- 
ipation  in  the  choice  of  presidential  electors. 

It  is  obvious  that  the  Nation  does  not  i)()ssess  an  entirely 
complete  government  of  its  own;  that  in  vital  respects  it  is 
dependent  ui)on  the  States.  Two  of  its  great  (lei);uimenls, 
in  fact,  the  executive  and  the  judicial,  would  fall  to  the  ground 
at  once  if  the  Stales  failed  to  perform  the  functions  expected 
of  them.  If  the  State  legislatures  were  to  make  no  }M-ovision 
for  the  sclertion  of  presidential  electors,  there  would  be  no  con- 
stitutional  inclliod  of  choosing  a  President;    and   the  federal 

•  In  some  Stages  sufTragc  has  been  conferred  upon  aliens  who  have  declan-il  ihcir 
intention  to  become  citizens  but  have  not  yet  taiten  out  their  final  papers,  ;in(l, 
therefore,  arc  not  yet  naturalized  citizens. 


THE  STATES  —  SUFFRAGE  AND   CITIZENSHIP        321 

judiciary  is  dependent  upon  executive  appointment  of  the 
judges.  It  is  difficult  to  see  what  remedy  would  He  with  the 
federal  government.  Practically,  of  course,  such  a  situation 
would  never  develop,  but  the  constitutional  possibility  of  it 
shows  the  peculiarly  close  and  vital  connection  between  the 
States  and  the  Nation. 

Before  passing  from  the  subject  of  suffrage,  two  additional 
facts  need  to  be  brought  out.  The  first  is  that  the  possession 
of  the  voting  privilege  in  one  State  does  not  mean  necessarily 
its  possession  in  another  State.  This  naturally  follows  from 
the  fact,  previously  discussed,  that  the  laws  of  a  State  are  with- 
out force  beyond  its  own  boundaries.  Each  State  protects 
the  electoral  franchise  by  residence  and  registration  require- 
ments, and  otherwise,  as  it  sees  fit.  No  State  is  under  obliga- 
tion to  admit  a  person  to  the  suffrage  because  he  has  enjoyed 
that  privilege  in  some  other  State.  The  second  fact,  to  be 
noted,  as  the  foregoing  discussion  intimates,  is  that  the  partici- 
pation in  the  election  of  public  officers  is  not  recognized  as  a 
natural  right,  nor  is  it  looked  upon  as  a  necessary  element  in 
citizenship.  According  to  ordinary  usage,  this  is  commonly 
spoken  of  as  a  right,  but  like  the  so-called  right  to  hold  office, 
it  is  merely  a  privilege  conferred  upon  individuals  by  authority 
of  the  commonwealth.^  The  electoral  franchise  is  conferred 
upon  no  one  by  the  federal  Constitution.  Of  course,  this  privi- 
lege conferred  upon  a  person  by  State  law  becomes  his  legal 

^  Minor  v.  HapperscU,  21  Wallace  162  (1875).  I'^  this  case,  in  addition  to  the 
question  of  citizenship,  the  point  was  raised  that  a  State,  in  which  women  of  proper 
age  are  debarred  from  voting,  does  not  maintain  a  republican  form  of  government 
as  is  required  by  the  Constitution.  This  contention  the  Court  denies.  "The 
guaranty  is  of  a  republican  form  of  government.  No  particular  government  is 
designated  as  republican,  neither  is  the  exact  form  to  be  guaranteed,  in  any  manner 
especially  designated.  Here,  as  in  other  parts  of  the  in.strument,  we  are  compelled 
to  resort  elsewhere  to  ascertain  what  was  intended.  The  guaranty  necessarily 
implies  a  duty  on  the  part  of  the  States  themselves  to  provide  such  a  government. 
All  the  States  had  governments  when  the  Constitution  was  adopted.  In  all,  the 
people  participated  to  some  extent,  through  their  representatives  elected  in  the 
manner  specially  provided.  These  governments  the  Constitution  did  not  change. 
They  were  accepted  precisely  as  they  were,  and  it  is,  therefore,  to  be  presumed  that 
they  were  such  as  it  was  the  duty  of  the  States  to  provide.  Thus  we  have  un- 
mistakable evidence  of  what  was  republican  in  form,  within  the  meaning  of  that 
term  as  employed  in  the  Constitution."  The  Court  then  goes  on  to  show  that  in 
these  States  the  suffrage  was  not  conferred  upon  women,  and  not  even  upon  all 
men,  and  concludes:  "Under  these  circumstances  it  is  certainly  now  too  late  to 
contend  that  a  government  is  not  republican,  within  the  meaning  of  this  guaranty 
in  the  Constitution,  because  women  arc  not  made  voters." 

Y 


322  COMPARATIVE   FREE   GOVERNMENT 

right,  as  long  as  the  law  stands  and  he  meets  the  law's  require- 
ments. In  such  circumstances  his  right  to  exercise  the  privilege 
conferred  on  him  by  the  law  cannot  be  questioned.  The  law, 
though,  may  be  changed  whenever  and  however  the  State 
pleases,  except  only  as  restrictions  are  imposed  by  the  fifteenth 
amendment. 

Citizenship.  —  The  question  of  citizenship  in  the  United 
States  is  one  of  pecuhar  interest.  Both  the  States  and  the 
Nation  are  involved  in  it.  There  is  a  citizenship  of  the  State 
and  a  citizenship  of  the  Nation.  The  two  are  not  identical. 
One  may  be  a  citizen  of  the  United  States  without  being  a 
citizen  of  a  particular  State.  The  rule  of  the  Constitution  is 
contained  in  one  of  the  provisions  of  the  fourteenth  amendment, 
as  follows :  "All  persons  born  or  naturaHzed  in  the  United 
States,  and  subject  to  the  jurisdiction  thereof,  are  citizens  of 
the  United  States  and  of  the  State  wherein  they  reside."  This 
makes  it  impossible  for  a  State  to  deny  State  citizenship  to  any 
citizen  of  the  United  States  who  acquires  a  permanent  residence 
within  it.  The  acquiring  of  this  residence  is  necessary,  however, 
although  there  is  no  particular  term  of  residence  prescribed. 
"  A  State  may  require  residence  for  a  specified  period  as  a 
condition  for  enjoyment  of  the  elective  franchise ;  but  the  mo- 
ment that  residence  in  a  State  by  one  who  is  a  citizen  of  the 
United  States  commences,  or  the  moment  one  who  resides 
in'a  State  acquires  citizenship  in  the  United  States,  that  mo- 
ment such  person  becomes  a  citizen  of  the  State.  By  residence 
is  meant,  not  merely  a  temporary  abiding  within  the  State, 
but  residence  in  a  legal  sense,  that  is,  a  permanent  residence. 
The  term  in  this  connection  is  synonymous  with  domicile  and 
involves  residence  in  fact,  with  intent  that  it  shall  continue  until 
subsequent  removal  with  the  intent  of  abandoning  such  resi- 
dence and  acquiring  another."  ' 

Until  the  enactment  of  the  fourteenth  amendment  the  Consti- 
tution was  silent  as  to  the  meaning  of  the  term  "  citizenship," 
whether  of  a  State  or  of  the  United  States.  The  word  "  citi- 
zen "  was  used,  but  it  was  not  defined.  An  eminent  writer 
asserts  that  before  the  adoption  of  the  fourteenth  amendment, 
the  Supreme  Court  was  inclining  to  the  view  of  the  leaders  of 
the  States'  rights  party  who  held  that  citizenship  of  the  United 

1  McClain,  "  Constitutional  Law  in  the  United  States,"  Second  Edition,  p.  276. 


THE   STATES  —  SUFFR.\GE  AND   CITIZENSHIP 


323 


States  was  merely  a  consequence  of  citizenship  in  some  State, 
as  was  indicated  by  the  decision  in  the  famous  Dred  Scott  case 
in  which  the  position  was  taken  that  a  Negro  could  not  be  a 
citizen  either  of  a  State  or  of  the  United  States.  He  says  that 
this  amendment  reversed  the  previously  estabhshed  rule. 
"  According  to  it,  citizenship  is  primarily  of  the  United  States ; 
and  secondarily  and  consequently,  of  the  locaHty  in  which  the 
citizen  of  the  United  States  may  reside.  Citizenship,  both  of 
the  United  States  and  of  the  commonwealths,  is  thus  conferred 
by  the  constitution  of  the  United  States  and  the  laws  of  Con- 
gress made  in  accordance  therewith.  The  commonwealths 
can  neither  confer  nor  withhold  citizenship  of  the  United  States. 
A  citizen  of  the  United  States  is  now,  ipso  jure,  a  citizen  of  the 
commonwealth  in  which  he  fixes  his  residence ;  and  if  any  com- 
monwealth should  undertake  to  defeat  the  spirit  of  this  pro- 
vision by  the  enactment  of  hostile  laws  in  regard  to  the  gaining 
of  residence  within  its  Hmits,  any  individual  suffering  injury 
from  the  same  may  invoke  the  interpretation  of  the  term  resi- 
dence by  the  United  States  judiciary,  and  the  aid  of  the  general 
government  in  the  protection  of  his  Hberty  under  this  inter- 
pretation." 1 

Citizenship  by  Birth.  —  Under  the  constitutional  provision, 
citizenship  is  acquired  either  by  birth  or  by  naturalization. 
Though  the  language  of  the  provision  is  simple,  many  diffi- 
culties have  been  encountered  in  applying  it  to  different  classes 
of  cases,  particularly  those  involving  citizenship  by  birth.  The 
fact  is  that  cases  may  arise  which  are  not  within  the  constitu- 
tional provision.  A  detailed  discussion  of  these  cannot  here 
be  given,  but  two  or  three  illustrations  may  be  cited.  For  in- 
stance, the  citizenship  status  of  children  born  abroad  of  parents 
who  are  citizens  of  the  United  States  is  not  determined  by  the 
Constitution.  They  are  not  subject  to  the  jurisdiction  of  the 
United  States.  By  act  of  Congress,  however,  passed  in  1855, 
before  the  fourteenth  amendment  was  added  to  the  Constitu- 
tion, —  a  law  which  is  still  in  force,  —  such  children  are  declared 
to  be  citizens  by  birth  if  their  fathers  are  citizens  of  the  United 
States.  Likewise,  the  status  of  alien  women  married  to  citi- 
zens of  the  United  States  is  not  covered  by  the  provision,  al- 
though by  law  citizenship  is  conferred  upon  them  if  they  are 
1  Burgess,  "  Political  Science  and  Constitutional  Law,"  Vol.  I,  p.  219. 


324  COTklPARATIVE   FREE   GOVERNMENT 

capable   of   naturalization.     Cases   have   been   determined   by 
the  courts  involving  the  citizenship  rights  of  children  born  in 
the  United  States  of  parents  who  are  not  citizens.     The  general 
rule  is  that  if  the  parents  are  subject  to  the  jurisdiction  of  the 
United  States,  the  children  are  citizens  by  birth.     For  instance, 
it  has  been  decided,  that  although  the  subjects  of  China  cannot, 
under  the  laws  in  force,  become  citizens,  the  children  of  Chinese 
parents  who  have  a  permanent  residence  in  the  United  States 
are  citizens  by  birth. ^     An  exception  to  this  rule  seems  to  be 
made  with  respect  to  children  born  in  the  United  States  of 
foreign  parents  who  are  residing  in  that  country  only  tempo- 
rarily, notwithstanding  the  fact  that  such  parents,  except  in 
the  case  of  representatives  of  foreign  nations  to  whom  the  inter- 
national rule  of  extra-territoriality  applies,  are  within  the  juris- 
diction of  the  United  States.     With  a  child  of  such  parents  an 
option  or  right  of  choice  is  recognized.     If  he  remains  in  the 
United  States  until  of  sufficient  age  to  exercise  an  inteUigent 
choice,  he  may  claim  citizenship  by  birth.     If,  however,  he  is 
taken  by  his  parents  to  the  country  of  which  they  are  subjects, 
and  his  choice  is  to  remain  there,  he  becomes  an  alien  to  the 
United  States,  notwithstanding  the  fact  that  he  was  born  in 
that  country. 2     Other  cases  have  arisen  from  time  to  time,  and 
been  passed  upon  Ijy  the  courts,  in  which  dilliculties  not  men- 
tioned here  have  been  involved;    Ijut  the  ones  suggested  are 
sufficient  to  show  that  the   constitutional  provision  is  not  all 
inclusive. 

Citizenship  by  Naturalization.  —  The  other  method  of  ac- 
quiring citizcnsliip,  that  of  naturalization,  lies  wholly  witliiii 
the  control  of  the  national  government.  By  the  Constitution 
Congress  is  given  power  to  "  establish  an  uniform  rule  of  nat- 
uralization." The  States  are  not  specifically  denied  the  power 
to  set  up  naturalization  rules  of  their  own,  but,  of  course,  by 
implication,  the  authority  of  Congress  is  necessarily  exclusive, 
else  it  could  not  establish  a  uniform  rule  throughout  the  Nation. 
By  act  (jf  Congress  a  general  naturalization  law  has  been  pro- 
vided which  i)rfscribes  the  procedure  which  an  alien  must  ob- 
serve in  order  to  become  a  citizen  of  the  United  States,  and, 
therefore,  of  tiie  State  in  which  he  resides.     It  is  to  be  noted 

>  United  Stales  v.  Wong  Kim  Ark,  160  U.  S.  64g  (1898). 

■■«McClain,  "  Constilulional  Law  in  Ihc  United  States,"  Second  Edition,  p.  278. 


THE   STATES  —  SUFFRAGE   AND   CITIZENSHIP        325 

that  the  authorization  of  Congress  to  impose  a  uniform  rule 
does  not  mean  that  the  same  rule  must  apply  to  all  classes  of 
aliens.  The  uniformity  feature  of  the  constitutional  provision 
applies  only  to  the  operation  of  the  law  in  the  several  States  of 
the  Union.  It  is  fully  within  the  power  of  Congress  to  restrict 
the  privilege  of  naturahzation  to  whatever  races  and  nationali- 
ties it  may  think  best,  and  to  enact  special  laws  for  special 
classes  of  ahens,  if  it  so  wishes.  Under  the  general  law,  as  it 
stands,  only  white  persons  and  members  of  the  African  race 
can  be  naturalized.  The  Chinese,  Japanese,  and  all  colored 
persons  except  Negroes,  are  excluded.  The  exclusion  of  the 
Chinese  has,  in  addition,  been  made  the  subject  of  special  legis- 
lation. It  must  be  kept  in  mind,  though,  that  with  respect  to 
all  persons  excluded  by  law,  whether  general  or  special,  the 
restriction  applies  only  to  naturahzation  and  does  not  prevent 
the  acquiring  of  citizenship  by  birth.  As  previously  pointed 
out,  the  children  of  parents  who  permanently  reside  within 
the  jurisdiction  of  the  United  States,  are  citizens  by  birth,  even 
though  the  parents  themselves  cannot  become  citizens.  Also, 
it  should  be  repeated,  the  enjoyment  of  pohtical  privileges,  such 
as  voting,  holding  office,  and  serving  on  juries,  is  not  involved 
in  the  question  of  naturahzation  or  citizenship.  The  latter 
Hes  within  the  province  of  the  Nation,  while  the  former  is  to  be 
determined  by  each  State  for  itself.  Furthermore,  the  fact 
should  be  mentioned  that  the  regulation  of  the  naturalization 
of  aliens  is  not  confined  to  statutes  enacted  by  Congress ;  this 
may  be  accomplished  by  treaties,  as  well,  whether  the  purpose 
be  exclusion  from  or  admission  to  the  privilege  of  naturalization. 
Treaties,  by  express  provision  of  the  Constitution,  are  a  part  of 
the  supreme  law  of  the  land  and  are  binding  upon  all  of  the 
States,  as  well  as  upon  the  Nation.  Obviously  the  question 
of  expatriation,  both  of  aliens  desiring  to  become  citizens  of 
the  United  States  and  of  citizens  of  the  United  States  who  wish 
to  become  citizens  of  other  countries,  is  a  proper  subject  for 
treaty  negotiations. 

"What  Citizenship  Means.  —  The  meaning  of.  citizenship  of 
the  United  States,  with  respect  to  the  privileges  conferred  by 
it,  is  still  to  be  touched  upon.  Though  citizenship  does  not 
carry  with  it  pohtical  privileges,  yet  it  involves  rights  and  privi- 
leges, both  at  home  and  abroad,   which  are  of  fundamental 


326  COMPARATIVE   FREE   GOVERN^IENT 

importance.  A  citizen  traveling  or  temporarily  residing  abroad 
is  entitled  to  the  protection  of  the  United  States  in  the  enjoy- 
ment of  his  rights  under  international  rules  and  treaty  provisions 
which  may  have  been  established.  Of  course,  such  citizen 
is  subject  to  the  I'avvs  of  the  foreign  state,  for  the  time  being, 
and  must  accord  them  proper  respect  and  obedience ;  but  it  is 
the  business  of  the  United  States  to  see  that  he  is  not  subjected 
to  discrimination  and  unfair  treatment.  In  regard  to  the  privi- 
leges of  citizenship  at  home,  the  Constitution  of  the  United 
States  gives  certain  fundamental  guaranties.  The  provisions 
of  the  so-called  Bill  of  Rights,  or  first  ten  amendments  to  the 
Constitution,  are  here  involved,  as  well  as  that  clause  of  Article 
IV  which  guarantees  to  the  citizens  of  each  State  "  all  the  privi- 
leges and  immunities  in  the  several  States  "  and  that  part  of 
the  fourteenth  amendment  which  says  that  no  State  "  shall 
make  or  enforce  any  law  which  shall  abridge  the  privileges  or 
immunities  of  citizens  of  the  United  States."  The  prohibitions 
of  the  first  ten  amendments  apply  to  the  national  authority, 
while  the  others  mentioned  apply  to  the  States.  Precisely  what 
privileges  and  immunities  are  guaranteed  against  State  inter- 
ference cannot  be  stated.  Some  things,  however,  are  clearly 
included  and  have  been  passed  upon  by  the  Supreme  Court, 
although  the  attempt  has  not  been  made  to  define  the  phrase 
specifically.  Some  brief  excerpts  from  the  Court's  decisions 
may  be  used  to  show  what  is  involved.  In  a  leading  case, 
calling  into  question  the  force  of  the  provision  that  the  citizens 
of  each  State  are  entitled  to  all  the  privileges  and  immunities 
of  citizens  in  the  several  States,  these  words  are  used :  "  It 
was  undoubtedly  the  object  of  the  clause  in  question  to  place 
the  citizens  of  each  State  upon  the  same  footing  with  citizens 
of  other  States,  so  far  as  the  advantages  resulting  from  citi- 
zenship in  those  States  are  concerned.  It  relieves  them  from 
disabilities  of  alienage  in  other  States ;  it  inhibits  discriminating 
legislation  against  them  by  other  States;  it  gives  them  the 
right  of  free  ingress  into  other  States,  and  egress  from  them; 
it  insures  to  them  in  other  States  the  same  freedom  possessed 
by  the  citizens  of  those  States  in  the  acquisition  and  enjoy- 
ment of  proi)erty  and  in  the  jnirsuit  of  happiness ;  and  it  secures 
to  them  in  other  States  the  equal  protection  of  their  laws."  ' 

'  J'aul  V.  Virginia,  8  Wallace  i68  (1868). 


THE   STATES  —  SUFFRAGE  AND   CITIZENSHIP        327 

In  another  case  involving  the  same  clause  of  the  Constitution 
the  court  declared  itself  as  follows:  "Attempt  will  not  be  made 
to  define  the  words  '  privileges  and  immunities,'  or  to  specify 
the  rights  which  they  are  intended  to  secure  and  protect,  beyond 
what  may  be  necessary  to  the  decision  of  the  case  before  the 
court.  Beyond  doubt,  those  words  are  words  of  very  compre- 
hensive meaning,  but  it  will  be  suf3&cient  to  say  that  the  clause 
plainly  and  unmistakably  secures  and  protects  the  right  of  a 
citizen  of  one  State  to  pass  into  any  other  State  of  the  Union, 
for  the  purpose  of  engaging  in  lawful  commerce,  trade,  or  busi- 
ness, without  molestation,  to  acquire  personal  property,  to  take 
and  hold  real  estate,  to  maintain  actions  in  the  courts  of  the 
States,  and  to  be  exempt  from  any  higher  taxes  or  excises  than 
are  imposed  by  the  State  upon  its  own  citizens."  ^  And  in  the 
famous  Slaughter  House  Cases,"  decided  in  1873,  the  Supreme 
Court  discussed  the  meaning  of  the  "  privileges  and  immuni- 
ties "  clause  of  the  fourteenth  amendment.  It  does  not  try  to 
state  the  exact  meaning  of  the  clause,  but  merely  calls  atten- 
tion to  some  of  the  rights  included.  Among  these  are  the  rights 
of  the  citizen  to  visit  the  seat  of  government  for  the  purpose  of 
transacting  business  with  it  or  seeking  its  protection ;  to  have 
free  access  to  the  Nation's  seaports  and  to  the  courts  of  justice ; 
to  demand  the  care  and  protection  of  the  federal  government 
over  his  life,  liberty,  and  property  when  on  the  high  seas  or 
within  the  jurisdiction  of  a  foreign  government;  peaceably  to 
assemble  and  petition  for  redress  of  grievances ;  to  use  the 
navigable  waters  of  the  United  States ;  to  become  a  citizen  of 
any  State  of  the  Union,  upon  acquiring  a  legal  residence,  with 
the  same  privileges  as  the  other  citizens  of  that  State.  Other 
rights  are  enumerated,  but  need  not  be  given  here  ;  those  already 
mentioned  are  sufficient  to  show  that  the  privileges  and  immuni- 
ties enjoyed  by  citizens  of  the  United  States  are  of  fundamental 
importance,  even  though  political  privileges  are  not  included. 
They  also  show  clearly  that  the  fourteenth  amendment,  which 
definitely  placed  the  whole  (juestion  of  citizenship  under  na- 
tional control,  has  imposed  far-reaching  restrictions  upon  the 
States.  It  is  unnecessary  in  this  place  to  discuss  all  of  the  pro- 
visions of  this  amendment  and  their  effect  upon  the  powers  of 
the  States,  but  it  may  be  said  that  the  restrictions  involved  m 

'  Ward  V.  Maryland,  12  Wallace  418  (1871).  «  16  Wallace  36. 


328  COMPARATI\'E   FREE   GOVERNMENT 

the  privileges  and  immunities  clause,  great  as  they  are,  are 
by  no  means  all  that  are  imposed.  Indeed,  as  affecting  State 
powers,  the  clauses  which  immediately  follow,  providing  that 
no  State  shall  deprive  any  person  of  life,  liberty,  or  property, 
without  due  process  of  law,  nor  deny  to  any  person  within  its 
jurisdiction  the  equal  protection  of  the  laws,  are  probably  of 
still  more  vital  significance.  Though  these  provisions  were 
apparently  designed  to  protect  the  Negroes  in  the  enjoyment 
of  constitutional  rights  acquired  by  the  overthrow  of  slavery, 
it  is  behind  them  that  corporations,  in  their  capacity  of  legal 
persons,  have  sought  and  found  shelter  against  much  restric- 
tive legislation  by  the  States.  Multitudes  of  cases  have  arisen 
involving  the  rights  of  corporations  under  the  fourteenth  amend- 
ment and  many  attempts  of  the  States  to  regulate  corporate 
activities  and  management  have  been  thwarted  b}^  action  of  the 
federal  courts.  Corporations  are  not  entitled  to  the  privileges 
and  immunities  of  citizenship,  but  they,  together  with  natural 
persons,  come  in  for  full  protection  under  the  "  due  process  " 
and  "  equal  protection  of  the  laws  "  provisions.  As  has  been 
the  case  in  other  matters,  the  development  in  connection  with 
citizenship,  particularly  that  growing  out  of  the  fourteenth 
amendment,  has  resulted  in  an  expansion  of  national  power 
and  a  restriction  upon  that  of  the  States. 

REFERENCES 

BuRGKSS.     Political  Science  and  Constitutional  Laiv,  Vol.  I,  pp.  218-232. 
CooLEY.     Constitutional  Law,  Chap.  XIV. 

CooLicY.     A  Treatise  on  Constitutional  Limitations,  Chaj).  X\'ll. 
McClain.     Constitutional  Law  in  the  United  States,  Chaps.  XXXIV,  XXXV. 
RicHMAN.     "Citizenship  of  United  States,"  Political  Science  Quarterly,  Vol. 

V,  p.  104. 
Van  Dyne.     Citizenship  of  the  United  Stales. 


CHAPTER  XXVI 

The  States  —  Police  Power  and  Control  over  Local 
Governments 

The  various  references  that  have  been  made  to  the  restric- 
tions upon  the  States  and  to  the  relative  decline  of  their  powers 
are  not  to  be  interpreted  as  suggesting  that  the  States  are  un- 
important political  organizations,  with  insignificant  functions. 
Nothing  could  be  farther  from  the  intention  of  this  discussion, 
or  more  at  variance  with  the  truth.  The  States  are  not  only 
essential  to  the  existence  of  the  Union,  but  they  exercise  powers 
of  the  highest  rank  and  perform  functions  that  are  absolutely 
necessary  for  the  orderly  on-going  of  society.  And  these  powers 
they  have,  not  by  sufferance  from  the  national  government, 
but  of  their  own  right.  Moreover,  they  are  to  be  used  as  each 
State  sees  fit,  subject  only  to  the  restrictions  of  the  federal 
Constitution.  It  is  necessary  merely  to  mention  that  those 
great  powers  of  government  called  police  powers,  and  that  the 
entire  control  of  all  local  governments  and  their  functions,  rest 
with  the  States,  to  indicate  how  vital  the  States  are  in  the 
government  of  the  American  people.  Brief  comment  upon 
the  police  power  and  the  relation  of  the  States  to  the  local 
governments  is  desiral)le. 

Significance  of  Police  Power.  —  It  is  not  necessary  to  try  to 
define  specifically  what  is  meant  by  the  poUce  power  of  the 
States ;  indeed,  no  precise,  authoritative  definition  of  the  term 
has  been  developed.  All  that  is  needed  here  is  to  indicate 
roughly  its  nature  and  scope,  and  thus  make  clear  one  of  the 
supremely  important  functions  of  the  States.  The  broad, 
fundamental  significance  of  this  power  is  suggested  in  these 
words  by  the  Supreme  Court :  "  But  what  are  the  police  powers 
of  a  State?  They  are  nothing  more  or  less  than  the  powers  of 
government  inherent  in  every  sovereignty  to  the  extent  of  its 
dominions.     And  whether  a  State  passes  a  quarantine  law,  or 

329 


330  COMPARATIVE   FREE   GOVERNMENT 

a  law  to  punish  offenses,  or  to  establish  courts  of  justice,  or 
requiring  certain  instruments  to  be  recorded,  or  to  regulate 
commerce  within  its  own  limits,  in  every  case  it  exercises  the 
same  power;  that  is  to  say,  the  power  of  sovereignty,  the 
power  to  govern  men  and  things  within  the  limits  of  its  domin- 
ion. It  is  by  virtue  of  this  power  that  it  legislates.  .  .  ."  ^ 
Considered  in  this  broad  sense,  the  poUce  power  is  utiUzed  in 
the  prevention  and  punishment  of  crimes,  the  control  of  private 
conduct,  the  regulation  of  the  ownership,  use,  and  management 
of  property,  the  promotion  and  maintenance  of  public  educa- 
tion, the  prevention  of  vice  and  immorality,  the  promotion  and 
protection  of  health,  the  regulation  of  domestic  relations,  the 
control  of  the  relations  between  employer  and  employee,  the 
protection  of  individuals  against  fraud,  oppression,  and  in- 
justice ;  in  short,  through  the  exercise  of  this  power,  the  "  whole 
of  the  ordinary  field  of  law  "  comes  within  the  control  of  the 
States.  It  is  through  it  that  the  States  possess  "  all  the  ordi- 
nary legal  choices  that  shape  a  people's  life."  - 

But  a  narrower  and  perhaps  more  accurate  interpretation  of 
the  police  power  is  frequently  made,  namely,  that  it  is  the  power 
used  by  the  Stales  for  the  promotion  of  the  public  welfare 
through  the  establishment  of  restraints  and  regulations  upon 
the  use  of  liberty  and  property.  "  The  police  power  restrains 
and  regulates,  for  the  promotion  of  the  pubhc  welfare,  the 
natural  or  common  liberty  of  the  citizen  in  the  use  of  his  per- 
sonal faculties  and  of  his  property."  •"*  Much  of  the  protection 
of  liberty  and  of  property,  and  many  of  the  limitations  upon 
each  of  these,  the  purpose  of  which  is  the  advancement  of  the 
public  welfare,  are  found  in  the  common  law  which  prevails  in 
the  Stales.  "  But  no  community  confines  its  care  of  the  public 
welfare  to  the  enforcement  of  the  principles  of  the  common  law. 
The  State  places  its  corporate  and  proi)rietary  resources  at  the 
disposal  of  the  public  by  the  estal)lishment  of  imj:)rovements 
and  services  of  different  kinds;  and  it  e.xercises  its  compulsory 
powers  for  the  i)revention  and  anticipation  of  wrong  by  narrow- 
ing common  law  rights  through  conventional  restraints  and 
positive  regulations  which  are  not  confined  to  the  prohibition 
of  wrongful  acts.     It  is  this  latter  kind  of  state  control  which 

'  I.icensc  Cases,  5  Howard  504  (1846).  •Above,  p.  7- 

'Freund.  "The  Police  I'ower,"  p.  17. 


THE   STATES  —  POLICE   POWER  331 

constitutes  the  essence  of  the  poHce  power.  The  maxim  of 
this  power  is  that  every  individual  must  submit  to  such  re- 
straints in  the  exercise  of  his  liberty  or  of  his  rights  of  property 
as  may  be  required  to  remove  or  reduce  the  danger  of  the  abuse 
of  these  rights  on  the  part  of  those  who  are  unskillful,  careless 
or  unscrupulous."  ^ 

A  word  more  should  be  added  concerning  the  pohce  power 
in  relation  to  the  courts  and  judicial  control  over  property. 
The  significance  of  this  relationship  is  brought  out  in  a  stimu- 
lating way  by  Professor  Ely,  who  argues  that  "  the  essence  of 
pohce  power  is  social  control  over  property,"  ~  and  whose  state- 
ment concerning  the  nature  of  the  police  power,  according  to 
the  modern  acceptation,  is  here  reproduced.  In  this,  emphasis 
is  placed  upon  its  judicial  character.  Says  Professor  Ely: 
"  The  pohce  power  is  regarded  as  primarily  a  legislative  power, 
and  it  is  true  that  legislative  bodies  provide  in  their  enactments 
materials  for  the  work  of  the  courts.  But  the  legislative  power 
has  no  inherent  limitations,  and  as  in  all  lands,  so  in  the  United 
States,  it  goes  without  saying  that  legislatures  are  presumed 
to  seek  the  public  good  only.  What  is  pecuhar  in  the  United 
States  is  that  controlling  influence  of  courts  given  them  by 
American  Constitutions ;  this  peculiarity  has  given  rise  to  the 
modern  use  of  the  term  '  police  power.'  As  a  peculiar  insti- 
tution, the  police  power  is  essentially  judicial,  and  it  is  as  a 
judicial  power  that  it  requires  discussion  in  the  present  con- 
nection; and  from  this  point  of  view  we  may  define  it  as  fol- 
lows: The  police  power  is  the  power  of  the  courts  to  interpret 
the  concept  property,  and  above  all  private  property ;  and  to 
estabhsh  its  metes  and  bounds.  The  judges,  in  their  decisions 
upon  the  accordance  of  legislative  acts  with  written  Consti- 
tutions, tell  us  what  we  may  do  with  property  or  what  acts  bear- 
ing on  property  are  allowable.  The  police  power  shapes  the 
development  of  the  social  side  of  property.  It  tells  us  what 
burdens  the  owner  of  property  must  bear  without  compensa- 
tion. .  .  .  Many  efforts  have  been  made  to  define  police 
power,  but  .  .  .  from  the  economic  point  of  view,  so  far  as 
property  is  concerned,  it  is  essentially  the  power  to  interpret 

1  Freund,  "The  Police  Power,"  p.  6. 

2  Ely,  "  Property  and  Contract  in  their  Relations  to  the  Distribution  of  Wealth," 
Vol.  I,  p.  225. 


332        COMPARATIVE  FREE  GOVERNMENT 

property  and  especially  private  property  and  to  give  the  con- 
cept a  content  at  each  particular  period  in  our  development 
which  fits  it  to  serve  the  general  welfare.  The  police  power 
means  the  general  welfare  theory  of  property.  It  signifies  the 
'  principle  of  public  poHcy  '  with  respect  to  property.  This 
idea  above  all  others  gives  unity  to  the  concept  of  police  power."  ^ 

An  important  fact  to  be  borne  in  mind  is  that  the  police 
power  is  not  negative  merely  in  its  effect,  but  is  also  definitely 
positive  ;  it  not  only  says  what  shall  not  be  done  with  property, 
in  the  interest  of  the  general  welfare,  but  also  declares  what 
shall  be  done.  In  this  connection  Professor  Ely  quotes  the 
words  of  Mr.  Justice  Holmes  of  the  United  States  Supreme 
Court :  "  The  poHce  power  extends  to  all  the  great  public 
needs.  It  may  be  put  forth  in  aid  of  what  is  sanctioned  by 
usage,  or  held  by  the  prevailing  morality  or  the  strong  and 
preponderant  opinion  to  be  greatly  and  immediately  necessary 
to  the  public  welfare."  ^  Although  the  police  power  is  not 
confined  to  the  regulation  of  property,  real  difficulty  is  not 
encountered  in  its  exercise  except  where  property  and  economic 
relations  are  concerned.  "  No  one  objects  to  general  benevo- 
lence —  to  doing  good  without  cost  —  so  when  we  consider 
police  power,  its  essence  is  the  interpretation  of  property,  and 
when  we  consider  the  real  essence  of  the  jjolice  power  as  found 
in  the  leading  American  decisions,  we  find  that  it  is  consistent 
with  this  concept.  It  is  that  power  of  the  courts  committed 
to  them  by  American  Constitutions  whereby  they  must  shape 
property  and  contract  to  existing  social  conditions  by  settling 
the  question  of  how  far  social  regulations  may,  without  com- 
pensation, impose  burdens  on  property.  It  seeks  to  preserve 
the  satisfactory  development  of  the  individual  and  social  sides 
of  private  property  and  thus  to  maintain  a  satisfactory  equilib- 
rium between  them."  •'' 

Further  comment  is  harrlly  necessary  to  show  that  the  gov- 
ernmental institution  that  exercises  this  great  jx)vver  and  dis- 
charges this  elemental  function  of  organized  society,  is  one  of 
prime  importance.     It  is  in   the  field  covered  by  this  power 

'  Ely,  "  Property  and  Contr.ut  in  their  Relations  to  the  Distribution  of  Wealth," 
Vol.  I,  pp.  20O-207.  ^  Nohlr  .Sliilf  Ihnik  V.  Haskell,  210  V.  .S.  no  (ion). 

'  Ely,  "Property  and  Contract  in  their  Relations  to  the  Distribution  of  Wealth," 

Vol.  I,  p.  2iO. 


THE  STATES  —  POLICE  POWER  333 

that  the  great  bulk  of  governmental  activity  is  found.  It  is 
therefore  through  action  of  the  States  that  the  American  citizen 
comes  into  most  immediate  and  most  frequent  contact  with 
governmental  authority.  This  must  continue  to  be  true  as 
long  as  the  present  constitutional  system  is  maintained.  The 
functions  of  the  States,  therefore,  their  powers  and  machinery 
of  government,'  are  subjects  of  fundamental  significance,  and 
he  who  seeks  to  understand  the  American  system  of  government 
in  all  of  its  essential  relationships  must  give  a  large  place  in 
his  thoughts  to  the  States  and  their  work. 

The  States  and  Local  Government.  —  In  the  matter  of  local 
government,  the  States  are  supreme.  No  authority  whatsoever 
is  lodged  in  the  national  government  over  local  affairs  or  or- 
ganizations. These  may  not  be  touched  or  in  any  way  affected 
by  national  authority,  unless  they  in  some  manner  act  contrary 
to  the  provisions  of  the  federal  Constitution;  in  which  case, 
their  acts  would  be  set  aside  by  judicial  process,  if  appeal  were 
made  to  the  courts.  Any  restraints  which  may  rest  upon  a 
State  with  respect  to  its  control  over  the  organization,  powers, 
and  duties  of  the  local  governments  within  its  limits  are  self- 
imposed  restraints.  The  people  of  a  State  through  the  State 
constitution  may  provide  for  any  kind  of  local  government 
they  may  wish.  They  may  set  up  local  governments  which 
are  independent  of  the  legislative  and  executive  authorities  in 
the  State  government,  or  they  may  give  to  one  or  the  other 
of  these  authorities  direct  supervision  over  all  local  activities. 
It  is  for  the  people  of  a  State  to  say,  if  they  wish,  through  the 
State  constitution,  what  the  entire  system  of  government,  both 
State  and  local,  shall  be,  subject  only  to  the  requirement  of 
the  federal  Constitution  that  the  State  government  itself  shall 
be  republican  in  form.  The  relationship  between  the  State 
government  and  the  various  local  governments,  therefore, 
may  be  determined  specifically  by  the  State  constitution, 
enacted  by  the  people  of  the  State  according  to  the  prescribed 
method  of  procedure.  If  this  relationship  is  not  thus  fixed, 
however,  it  will  ])e  determined  by  the  State  legislature  in  what- 
ever way  the  latter  may  prefer,  subject,  of  course,  to  any  pro- 
hibitions and  restrictions  that  may  be  imposed  by  the  State 
constitution.  The  reserved  powers  of  a  State  are  vested  in 
its  legislature,  except  as  the   State  constitution   may  forbid. 


334  COMPARATIVE  FREE   GOVERNMENT 

The  right  of  a  legislature,  free  from  constitutional  restraints, 
to  create  new  local  governments  or  alter  or  aboUsh  old  ones, 
is  therefore  beyond  all  question.  In  such  circumstances  it 
has  a  free  hand. 

The  local  governments,  whether  counties,  townships,  towns, 
cities,  or  incorporated  towns,  possess  no  inherent  governmental 
authority,  but  exercise  only  delegated  powers.  These  powers 
are  derived  either  directly  from  the  constitution  of  the  State  or 
from  the  acts  of  its  legislature.  The  local  governments,  there- 
fore, can  do  only  what  they  are  permitted  to  do ;  they  are 
not  free  to  do  as  they  wish,  unless  forbidden  by  State  authority. 
In  this  respect  their  position  is  radically  different  from  that 
of  cities  in  continental  Europe,  which  in  general  resemble  the 
American  States  in  that  they  have  all  powers  not  taken  from 
them.  They  are  created  by  the  States  for  specific  purposes 
and  are  given  the  powers  that  are  considered  necessary  or  ad- 
visable. If  these  prove  inadequate,  relief  can  come  only 
through  a  further  grant  of  powers  from  the  State.  The  nature 
of  the  powers  possessed  by  the  local  governments  and  the  con- 
stitutional principle  which  controls,  are  clearly  shown  in  the 
following  statement  by  an  eminent  writer:  "It  is  a  general 
and  undisputed  proposition  of  law  that  a  municipal  corporation 
possesses  and  can  exercise  the  following  powers  and  no  others : 
First,  those  granted  in  exjiress  words ;  second,  those  necessarily 
or  fairly  implied  in,  or  incident  to  the  powers  granted ;  third, 
those  essential  to  the  declared  objects  and  purposes  of  the 
corporation  —  not  simply  convenient,  but  indispensable.  Any 
fair,  reasonable  doubt  concerning  the  existence  of  power  is 
resolved  by  the  courts  against  the  corporation,  and  the  power  is 
denied.  Of  every  municipal  corporation,  the  charter  or  statute 
by  which  it  is  created  is  its  organic  act.  Neither  the  corporation 
nor  its  officers  can  do  any  act,  or  make  any  contract,  or  incur 
any  liability,  not  authorized  thereby,  or  by  some  legislative 
act  aj)i)licablc  thereto.  All  acts  beyond  the  sco[)e  of  the  powers 
granted  are  void."  ' 

The  fact  that  the  local  authorities  have  only  delegated  powers 

is  one  of  great  practical  importance,  both  from  the  stan(li)oint 

of  legislative  eflkiency  in  the  State  and  adminislrative  efhciency 

in  the  local  governments.     As  a  consequence  of  the  development 

*  Dillon,  "  Municipal  Corporations,"  Fourth  Edition,  p.  145. 


THE  STATES  —  POLICE   POWER  335 

of  multitudinous,  conflicting  local  interests,  and  particularly 
of  the  rapid  growth  of  cities,  both  in  number  and  in  size,  the 
legislatures  of  the  States  are  constantly  under  pressure  to  enact 
new  legislation  for  the  benefit  of  the  local  governments  and  to 
confer  upon  them  additional  powers.  The  result  is  that  a 
relatively  large  part  of  the  time  and  thought  of  each  legislature 
is  given  to  the  consideration  of  problems  of  local  government 
which  is  needed  in  the  determination  of  important  questions 
of  State  poHcy.  State  interests  naturally  suffer  to  a  greater  or 
less  degree.  On  the  other  hand,  because  of  the  general  consti- 
tutional rule  against  special  legislation  and  the  requirement  of 
State  constitutions  that  laws  must  be  of  general  appHcation,  the 
conflicting  interests  and  needs  of  the  locaUties  are  inadequately 
provided  for,  to  the  serious  impairment  of  the  efficiency  of  the 
local  units.  The  natural  outcome  is  a  steadily  increasing  de- 
mand for  a  larger  independence,  —  home  rule,  —  on  the  part 
of  the  local  governments.  This  demand  is  particularly  marked 
in  the  case  of  cities,  but  it  is  also  more  or  less  prevalent  with 
respect  to  counties.  There  is  increasing  objection  to  State 
supervision  and  control  in  purely  local  affairs.  In  all  of  the 
States,  but,  of  course,  in  some  far  more  than  in  others,  the 
tendency  is  to  give  to  the  local  governments  larger  powers  and 
independence  in  the  settlement  of  their  own  problems.  It 
may  be  expected  that  future  years  will  witness  fundamental  re- 
adjustments in  the  relations  between  State  and  local  govern- 
ments, for  the  question  of  what  these  relations  shall  be  is  one 
of  the  pressing  practical  problems  of  American  politics. 

Nature  of  the  State's  Control.  —  Emphasis  is  to  be  placed  on 
the  fact  that  the  control  which  the  States  exercise  over  the 
cities  and  other  local  governments  is  primarily  legislative  in 
character  and  not  administrative.  The  careful  administrative 
supervision,  so  common  in  Europe,  is  largely  lacking,  although 
in  recent  years  there  has  been  a  marked  tendency  to  increase 
the  State's  administrative  control.  The  usual  plan  has  been 
to  confer  upon  the  local  governments  the  powers  considered 
necessary  and  then  allow  them  to  use  these  powers  pretty  much 
as  they  please,  without  being  held  accountable  to  established 
State  authority.  The  results  of  this  policy  have  been  far  from 
satisfactory,  however,  and  a  more  centralized  administrative 
direction  is  being  established  in  many  States.     Recognition  is 


336  COMPARATIVE  FREE   GOVERNMENT 

growing  of  the  idea  that  the  vital  question  is  not  so  much  that 
of  what  powers  the  local  governments  shall  have,  but  of  how  they 
utilize  their  powers.  The  need  is  for  efficient  supervision  of 
their  administrative  work,  —  a  need  which  the  States  are 
coming  to  see  and  to  meet.  The  development  that  is  taking 
place  is  similar  to  that  which  has  occurred  in  England ;  the 
legislative  control  is  giving  way,  in  part,  and  is  being  supple- 
mented by  administrative  control.  The  result  is  likely  to  be  a 
system  which  in  character  stands  mid-way  between  the  extreme 
legislative  system,  so  familiar  to  America,  and  the  extreme 
administrative  system,  so  common  in  European  countries.  It 
is  to  be  observed,  however,  that  the  supervision  is  centralized, 
State  supervision,  whether  it  be  of  one  type  or  the  other.  The 
local  governments  have  powers  or  do  not  have  powers,  they 
are  free  or  not  free,  just  as  the  States  prescribe  through  their 
constitutions  or  the  acts  of  their  legislatures. 

The  local  governments,  created  thus  by  State  action  and 
exercising  only  delegated  authority,  have  a  dual  function  to 
discharge.  They  are  instruments  for  the  control  of  local 
affairs,  as  far  as  their  limited  powers  go,  and  they  are  at  the  same 
time  agents  of  the  State,  charged  with  the  duty  of  assisting  in 
the  enforcement  of  State  laws  and  in  administering  State  affairs. 
What  the  exact  powers  of  any  particular  local  government  are, 
depends  upon  the  class  to  which  it  belongs.  The  towns  and 
townships  do  not  have  the  same  powers  as  the  counties ;  and  the 
powers  of  the  counties  are  not  identical  with  those  of  the  cities. 
Moreover,  the  cities  of  a  State  are  frequently  divided  into 
classes,  according  to  population,  each  class  having  powers  that 
differ  more  or  less  from  those  of  the  other  classes.  As  a  rule, 
the  grant  of  powers  is  uniform  to  all  local  governments  of  the 
same  kind  or  class.  In  the  case  of  cities,  the  movement  for 
a  larger  independence  of  State  control  has  made  much  progress 
in  recent  years,  and  a  number  of  States  have,  by  amenflments 
to  their  constitutions,  conferred  upon  municipalities  the  right 
to  frame  their  own  charters,  subject  oiiIn'  lo  constitutional 
requirements  and  the  general  police  regulations  of  State  law. 
The  same  object  is  being  sought,  also,  through  statutory  pro- 
visions. Where  this  home  rule  j)rinciple  is  applied,  the  local 
government,  though  it  continues  to  exercise  delegated  power, 
is  freed  from  supervision  and  iDlcrfereiicc  on   the  part  of  the 


THE  STATES  —  POLICE  POWER  337 

legislature.  In  this  way  each  community  can  adapt  its  insti- 
tutions to  its  own  requirements,  and  carry  out  policies  designed 
to  meet  its  own  pecuHar  needs. 

Local  Governments  Agents  of  the  State.  —  As  agents  of  the 
States,  the  local  governments  have  important  duties  to  per- 
form. For  example,  their  law  enforcement  oflScers  are  charged 
with  the  enforcement  of  State  laws.  The  States,  as  a  rule,  have 
no  regular  police  of  their  own  and  are  dependent  upon  local 
officers,  largely,  for  the  prevention  of  crimes  and  the  punish- 
ment of  offenders.  The  conspicuous  fact  should  be  remembered, 
in  this  connection,  that  local  enforcement  of  State  police  regu- 
lations is  often  far  from  what  it  ought  to  be.  Locally  elected 
officers  are  much  inclined  to  govern  their  official  conduct  by 
the  sentiment  of  the  communities  they  serve.  The  enforce- 
ment of  State  laws  against  gambhng  or  the  illegal  sale  of  liquor, 
for  instance,  in  a  community  where  such  offenses  are  winked  at, 
or  to  a  degree  openly  approved  by  local  opinion,  is  very  likely 
to  be  lax  and  of  little  result.  This  has  become  a  very  serious 
problem,  in  fact,  in  all  of  the  States  and  a  growing  sentiment 
is  discernible  in  favor  of  more  stringent  State  supervision  over 
the  work  of  law  enforcement,  if  not  the  actual  establishment  of 
a  State  police.  In  some  States,  the  chief  executive  may  remove 
local  officers  for  failure  in  this  respect  and  in  others  the  Depart- 
ment of  Justice  may,  through  court  proceedings,  oust  them  for 
cause. 

But  the  functions  of  the  local  governments  as  agents  of  the 
States  are  not  confined  to  enforcing  police  regulations.  They 
are  also  important  administrative  districts  of  the  State.  Three 
distinct  purposes  for  which  they  are  used  may  be  cited.  The 
first  is  the  administration  of  the  revenue  laws.  The  local  units 
are  taxation  districts,  not  merely  for  obtaining  local  revenues, 
but  also  for  obtaining  State  revenues.  The  State  revenue 
systems  differ,  of  course,  in  many  ways,  and  some  have  sources 
of  income  which  others  do  not  have.  Also  the  process  of 
levying  and  collecting  taxes  is  by  no  means  identical  in  all  the 
States,  but  the  traditional  practice  of  the  States,  with  respect 
to  the  general  property  tax,  which  has  been  the  chief  source  of 
State  and  local  revenues,  has  been  to  intrust  to  the  officers  of 
the  local  governments  the  duty  of  assessing  the  property  and 
collecting  the  taxes  according  to  the  levies  made  by  the  State 


SS^  COMPARATIVE  FREE   GOVERNMENT 

and  local  authorities.  The  funds  belonging  to  the  State,  col- 
lected by  the  local  collection  officer  —  the  county  treasurer 
usually  —  are  turned  over,  under  provisions  of  law,  to  the 
State  treasurer  and  become  available  for  the  purposes  to  which 
they  have  been  appropriated  by  the  State  legislature.  Thus 
this  vital  function  of  administering  the  State's  tax  laws  is  to  a 
large  extent  in  the  hands  of  locally  elected  officers  in  the  local 
government  districts,  the  county,  township,  town,  and  city. 
Needless  to  say,  abundant  fault  may  be  found  with  the  manner 
in  which  this  system  works.  Probably  no  other  of  the  States' 
activities  has  given  cause  for  more  complaint  and  greater  dis- 
satisfaction. The  extreme  decentralization  of  revenue  adminis- 
tration has  been  the  chief  weakness.  This  has  come  to  be  so 
widely  understood  that  in  recent  years  more  than  half  the 
States  have  provided  for  centralized  supervision  through 
State  tax  commissions. 

The  local  government  units  are  also  election  districts  for  the 
State.  The  county,  particularly,  is  important  in  this  connec- 
tion. In  fact,  the  county  in  most  States  is  the  real  election 
district.  Some  of  its  officers,  in  general,  are  responsible  for  the 
administration  of  the  election  laws.  Ballots  are  printed  under 
their  direction.  The  returns  from  the  townships,  wards,  or 
other  election  precincts  are  sent  to  the  proper  county  officers 
to  be  canvassed  officially.  This  applies  not  merely  to  the 
election  of  county  officers,  but  to  the  election  of  all  State  officers. 
United  States  Senators,  and  presidential  electors.  Election 
expenses  are  provided  for  out  of  county  funds.  The  county  is 
the  usual  unit  of  representation  in  the  State  legislature,  and  it 
is  by  a  grou{)ing  of  c(junties,  except  in  the  large  cities,  that  the 
larger  election  districts,  such  as  congressional  districts,  are 
formed.  Elections  are  under  the  strict  control  of  the  States, 
except  as  Congress  has  prescribed  regulations  which  must  be 
observed  in  the  election  of  national  officers,  and  are  conducted 
according  to  a  i)r()ccdure  refiuircd  by  Stale  law.  The  counties 
and  the  smaller  election  precincts,  as  far  as  State  elections  are 
concerned,  are  merely  State  administrative  agents. 

Likewise,  the  local  governments  are  districts  for  the  adminis- 
tration of  justice.  And  here,  again,  the  county  is  the  district 
of  most  consequence.  In  all  the  States  there  are  courts  of 
general  civil  and  criminal  jurisdiction  in  the  counties,  which 


THE   STATES  —  POLICE   POWER  339 

hold  regular  sessions  as  required  by  State  law.  These  courts 
are  parts  of  the  State  judicial  system,  but  their  administrative 
officers  are  county  officials  receiving  compensation  from  the 
county  funds.  The  sheriff  of  the  county,  and  the  county  at- 
torney, or,  as  he  is  frequently  called,  the  district  attorney,  are 
officers  of  these  courts,  though  they  are  usually  chosen  by  the 
voters  at  the  polls,  and  are  the  county's  chief  agents  in  the  en- 
forcement of  the  laws.  The  grand  juries  which  bring  indict- 
ments before  these  county  or  district  courts  are  county  bodies, 
with  authority  to  consider  only  offenses  which  are  committed 
within  the  limits  of  the  county.  In  short,  these  courts,  though 
they  may  not  be  known  as  such,  are  really  county  courts,  and 
the  records  of  their  work  are  kept  at  the  county  seat,  and  the 
expenses  incurred  by  them  are  paid  out  of  county  funds.  The 
minor  justice  of  the  peace  courts  and  various  municipal  courts 
in  the  larger  cities  are  also  agencies  of  the  State  in  enforcing 
the  laws  and  administering  justice.  The  State  depends  in  large 
measure  upon  its  administrative  divisions  and  subdivisions  for 
the  maintenance  of  law  and  order. 

Further  discussion  is  not  necessary  to  show  the  relationship 
of  dependence  which  exists  between  the  State  and  the  local 
governments.  The  latter  exist  only  at  the  will  of  the  former ; 
their  powers  and  duties  are  what  the  States  prescribe.  And  the 
States  have  chosen  to  depend  upon  the  local  governments  for 
the  discharge  of  functions  which  are  vital  to  their  own  existence. 

REFERENCES 

Beard.     American  Government  and  Politics,  Edition  1914,  Chaps.  XXVII, 

PP-  579-584,  XXIX. 
Bryce.     The  American  Commonwealth,  Edition  1910,  Vol.  I,  Chaps.  XL\'III, 

XLIX,  LII. 
CoOLEY.     A  Treatise  on  Constitutional  Limitations,  Chap.  XVI. 
Ely.     Properly  and  Contract  in  their  Relations  to  the  Distribution  of  Wealth, 

Vol.  I,  Chap.  VII. 
Fairlie.     Local  Government  in  Counties,  Towns,  and  Villages. 
Freund.     The  Police  Power. 

GooDXOW.     City  Government  in  the  United  States,  Chaps.  II,  IV,  V. 
GooDNOW.     The  Principles  of  the  Administrative  Law  of  the  United  States, 

Pook  III,  Chaps.  I,  II,  III,  IV. 
MuNRO.     The  Government  of  American  Cities,  Chnps.  Ill,  IV. 
Young.     The  New  American  Government  and  its  V.'"rk,  Chap.  XXIV. 


CHAPTER  XXVII 

State  Legislation 

The  governments  of  the  States  are  very  much  alike  in  their 
general  outlines,  but  are  dissimilar  in  many  details  of  organiza- 
tion and  procedure.  This  fact  makes  the  task  of  describing 
them  in  general  terms,  within  the  limits  of  a  few  pages,  one  of 
some  difficulty.  To  present  an  outline  of  the  governmental 
system  of  any  one  State  would  be  a  simple  task,  but  to  let 
such  outline  stand  as  representative  of  the  governments  of  the 
other  forty-seven  States,  would  be  to  ignore  essential  differences 
among  them,  particularly  in  administrative  organization,  and 
to  imj)])-  a  degree  of  uniformity  which  does  not  exist.  It  is 
desirable,  therefore,  briefly  to  discuss  the  State  governments 
in  terms  which,  in  general,  will  apply  to  all  alike.  The  purpose 
here  is  not  to  give  a  detailed  treatment  of  the  State  organiza- 
tions, but  merely  to  describe  their  essential  characteristics, 
suggest  some  of  the  important  developments  that  have  taken 
place,  and  indicate  the  manner  in  which  the  States  are  dis- 
charging their  functions  as  members  of  the  American  Republic. 

Uniformity  Among  State  Institutions.  —  The  tendency  of  the 
States  to  copy  the  laws  and  institutions  of  one  another  has 
already  been  briefly  commented  upon.  This  is  both  a  signifi- 
cant and  a  natural  tendency.  As  new  regions  were  settled  and 
flevelojied  by  the  pioneers  who  pushed  on  to  the  westward  from 
the  older  States,  it  was  inevitable  that  the  j)olilical  institutions, 
which  in  time  were  established,  should  be  i)atterned  after  the 
institutions  which  had  existed  in  the  States  from  which  the 
settlers  came.  This  is  the  case  with  the  local  governments  as 
well  as  those  of  the  States ;  perhaps  it  is  even  more  the  case 
with  them,  since  the  first  governments  set  up  in  the  frontier 
regions  were  purely  local  in  character.  When  ihe  time  came  to 
seek  membership  in  the  Union  and  organize  as  a  State,  the 
logical  thing  in   the  drafling  of  the  new  constilutiou   was  to 

340 


STATE  LEGISLATION  34 1 

provide  for  a  framework  of  government  substantially  identical 
with  those  of  the  older  States.  Moreover,  it  is  to  be  remembered 
that  the  original  States,  when  they  became  independent  com- 
monwealths and  estabHshed  the  Union,  retained  practically  the 
same  organizations  they  had  when  they  were  colonies  under 
British  rule.  These,  in  their  main  outlines,  were  essentially 
the  same  in  all  the  States,  the  chief  differences  that  prevailed 
being  found  in  connection  with  the  local  governments.  Con- 
sequently there  was  a  long  experience  with  a  fairly  uniform 
scheme  of  State  government,  which  had  given  general  satis- 
faction, to  be  drawn  upon  by  the  founders  of  new  States  and  the 
framers  of  new  constitutions.  The  general  success  of  the 
familiar  State  institutions  which  this  experience  revealed 
assured  their  acceptance  in  the  newer  commonwealths,  and 
discouraged  attempts  at  innovation  and  experimentation  with 
untried  agencies  of  government. 

Furthermore,  the  influence  of  the  national  government, 
which  grew  in  strength  and  effectiveness  as  the  Nation  devel- 
oped, tended  strongly  in  the  same  direction.  As  we  have  seen, 
the  national  government  was  modeled  chiefly  upon  the  govern- 
ments of  the  Colonies  and  the  States,  and  so  gave  additional 
evidence,  upon  a  magnified  scale  and  in  a  conspicuous  manner, 
of  the  inherent  worth  of  the  institutions  and  the  organization 
of  government  to  which  American  conditions  and  experience  had 
given  rise.  The  marked  influence  of  the  States  upon  one  another 
and  upon  the  Nation,  and  of  the  Nation  upon  the  States,  is 
one  of  the  notable  aspects  of  American  politics.  Under  all  the 
circumstances,  therefore,  it  is  not  to  be  wondered  at  that  there 
is  a  high  degree  of  uniformity  in  the  fundamental  features  of 
the  State  constitutions.  Anything  else,  considering  the 
similarity  of  the  problems  which  the  States  must  meet  and  the 
fact  that  their  powers  and  functions  are  identical,  could  not 
reasonably  be  expected.  Yet  there  are  important  differences, 
whose  significance  should  not  be  overlooked ;  and,  as  previously 
pointed  out,  one  of  the  distinct  advantages  of  the  American 
federation  plan  is  that  the  States  have  the  opportunity  to  origi- 
nate and  apply  new  theories  and  methods.  Though  they  have 
utihzed  this  opportunity  in  the  past  only  to  a  slight  extent,  yet 
a  tendency  to  make  freer  use  of  it  is  indicated  by  the  events  of 
recent  years.     A  few  of  the  States,  in  order  to  make  their  gov- 


342  COMPAR.\TR'E   FREE   GOVERNMENT 

ernments  more  truly  democratic  and  solve  pressing  problems 
which  have  grown  out  of  changed  and  changing  industrial  con- 
ditions, have  made  radical  departures  in  the  enactment  of  new 
legislation  and  the  establishment  of  new  administrative  agencies. 
Wisconsin,  with  her  state  insurance,  income  tax,  and  multitude 
of  administrative  commissions,  is  a  good  example. 

Development  of  State  Constitutions.  —  Looking  at  the  de- 
velopment of  the  States  from  the  time  they  gained  their  inde- 
pendence to  the  present,  it  is  seen  that  not  only  have  their 
institutions  of  government  been  similar,  but  also  that  their 
experience  with  those  institutions  and  the  attitude  of  the 
people  toward  them,  have  been  strikingly  similar.  This  may 
be  shown  by  reference  to  the  development  which  has  occurred 
in  connection  with  the  State  constitutions,  and  the  altered 
positions  of  the  legislative  and  executive  branches  of  the  State 
governments.  This  development  is  profoundly  significant  and 
is  directly  related  to  some  of  the  greatest  questions  now  before 
the  people  of  the  States. 

The  early  constitutions  were  short  documents  which  dealt 
in  general  terms  with  the  fundamental  structure  of  the  State 
governments.  They  created  the  instrumentalities  of  govern- 
ment, distributed  powers  among  them,  and  harmonized  the  use 
of  those  powers.  They  were  essentially  grants  of  powers  to  the 
departments  of  government  which  they  established ;  they  were 
not  codes  of  restrictions  upon  the  departments.  In  other  words, 
they  merely  created  the  framework  of  the  State  governments. 
Indeed,  some  of  them  were  called  "  frames,"  a  term  suggestive 
of  their  nature  and  of  the  intention  of  those  who  were  responsible 
for  them.'  These  instruments  were  not  designed  to  regulate  the 
conduct  of  private  individuals,  through  a  multitude  of  provisions, 
but  to  create  the  machinery  of  government  and  determine  the 
relations  among  its  parts.  Under  them  the  department  of 
government  which  was  of  highest  importance  was  the  legislature. 
As  compared  with  it,  the  executive  department  was  distinctly 
inferior.  The  executive,  in  fact,  was  largely  the  agent  of  the 
legislature.  To  the  latter  was  given  the  function  of  controlling 
(he  Stale.  The  inherent  powers  of  the  State,  unlimited  powers 
of  legislation,  in  fact,  were  in  the  hands  of  the  legislature,  except 
as  it  was  limited  by  the  State  constitution,  and  —  after  the 

'Jones,  "Statute  Law  Makins  in  the  I'nitcd  States,"  p.  4. 


STATE  LEGISLATION  343 

national  government  was  formed  —  by  the  federal  Constitution. 
This  is  the  theory  which  was  accepted  at  that  time  and  which  is 
still  accepted.  When  the  independence  of  the  States  was 
declared,  their  legislatures  fell  heir  to  the  plenary  powers  of  the 
English  Parliament,  whose  authority  in  America  came  to  an  end. 
As  this  constitutional  adjustment  implies,  the  people  had  large 
confidence  in  their  State  legislatures  and  only  slight  confidence 
in  their  executives.  Because  of  their  experience  with  British 
authorities,  particularly  the  colonial  governors,  they  were 
distrustful  of  executive  power.  There  was  constant  fear  of 
executive  encroachments.  Consequently,  as  stated,  the  execu- 
tive held  a  relatively  subordinate  place  in  the  State  government 
and  the  legislature  was  exalted  as  the  champion  and  protector 
of  the  newly  acquired  and  dearly  bought  liberties  of  the  people. 

The  People  and  the  Legislatures.  —  This  expresses  the  general 
attitude  which  prevailed  at  the  time  the  national  government 
was  established,  and  which  continued  to  prevail  for  a  number  of 
years.  But  at  length  a  change  began  to  take  place.  The  State 
legislatures  began  to  lose  some  of  their  prestige.  Gradually 
the  confidence  of  the  people  in  them  began  to  wane.  The  great 
respect  shown  to  the  legislatures  in  the  earlier  times  changed  to  a 
widespread,  freely  expressed  disrespect.  Distrust  of  them 
sprang  up,  —  distrust  of  their  motives,  their  integrity,  and  their 
capacity.  The  consequence  was  numerous  readjustments  of  the 
State  governments  and  frequent  revisions  of  State  constitutions. 

The  outstanding  feature  of  these  revisions  was  the  marked 
restriction  placed  upon  legislative  power.  At  first  the  restric- 
tions were  comparatively  slight,  but  as  time  passed  and  the 
popular  distrust  increased,  they  became  more  numerous  and 
more  sweeping  in  their  effect.  Upon  many  questions  the  hands 
of  the  legislatures  were  tied.  Powers,  which  formerly  were 
exercised  without  restraint,  were  specifically  forbidden.  The 
sphere  in  which  the  legislature  was  free  to  work  its  will,  un- 
trammeled  by  constitutional  restrictions,  was  cut  down  until  the 
legislature's  position  was  strikingly  different  from  what  it  had 
been  when  the  Union  was  formed.  But  the  development  did  not 
stop  with  merely  placing  constitutional  restrictions  upon  the 
legislature.  In  time  the  practice  grew  up  of  incorporating  in  the 
constitutions  veritable  codes  of  laws  regulating  in  detail  all  kinds 
of  questions  which  formerly  had  been  left  to  the  legislature's  dis- 


344  COMPARATI\I-:   FREE   GOVERNMENT 

cretion.  The  purpose  was  not  merely  to  restrain  the  legislature, 
but  absolutely  to  prevent  action  by  it  upon  the  questions  covered 
by  the  Constitution.  In  this  way  the  character  of  the  State 
constitutions  came  to  be  changed.  Originally  they  were  in- 
tended to  express  only  the  fundamental  principles  underlying 
the  State  governments.  The  laws  of  the  States,  in  the  ordinary 
sense,  the  details  of  legal  regulations,  were  left  to  the  legislatures 
to  prescribe.  But  under  the  influence  of  the  movement  which 
has  been  described,  the  constitutions  have  come  to  be  filled  with 
a  multitude  of  details  which  really  have  no  place  in  them,  the 
effect  and  purpose  of  which  are  to  deprive  the  legislatures  of 
powers  which  properly  belong  to  them.  "  Our  later  constitu- 
tions have  included  an  ever  increasing  body  of  concrete  rules 
drawn  with  some  local  or  temporary  abuse  in  view.  By  putting 
the  rule  in  the  constitution  it  was  thought  to  protect  it  against 
the  possibility  of  easy  repeal  should  the  people  subsequently, 
through  their  legislature,  decide  that  it  should  be  modified. 
When  legislators  wrongly  used  their  power,  resort  was  had  to 
taking  the  power  permanently  away  from  them  instead  of  taking 
the  legislator  out  of  power  at  the  succeeding  election.  As  a 
result  of  this  process  our  constitutions  are  padded  with  restric- 
tions, which  make  the  legislator  no  longer  a  free  agent  in  the 
proper  field  of  legislation  and  encourage  resort  to  subterfuge  by 
which  that  may  be  accomplished  indirectly,  the  doing  of  which 
is  forbidden."  ' 

To  illustrate  this  phase  of  constitutional  development,  writers 
frequently  call  attention  to  the  great  length  of  the  present  State 
constitutions  as  compared  with  those  in  the  earlier  times.  A 
few  examples  will  be  sufl5cient  to  show  this  tendency  toward 
expansion.  Louisiana  in  1812  had  a  constitution  of  twelve 
pages  ;  the  present  constitution  has  ninety-five  pages,  containing 
forty-five  thousand  words.  Virginia  in  1776  was  content  with 
a  constitution  of  four  pages;  that  of  1902  numbers  fifty-eight 
I)ages.  The  South  Carolina  constitution  in  177S  had  nine  pages; 
that  aflof)ted  in  iSqc;  has  thirty-eight.  Alabama  adopted  a 
constitution  in  1819  with  eighteen  l)ages;  in  iqoi  a  new  consti- 
tution went  into  effect  with  fifty-two  pages.  And  llnis  il  is  in 
all  the  Stales  where  constitutional  revisions  Ikivl-  occurred. 
The  newer  States,  those  admitted  in  recent  years,  all  have  long 

1  Jones,  "  bUlulc  Law  Makinj;  in  the  United  States,"  p.  5. 


STATE  LEGISLATION  345 

constitutions.  Oklahoma  in  1907  accepted  a  constitution  with 
seventy-three  pages,  containing  more  than  thirty-three  thousand 
words,  while  New  Mexico  in  191 1  adopted  one  with  forty-sev^en 
pages.  This  tendency  to  expand  the  constitutions  is  found  in 
all  the  States,  though  it  is  less  in  evidence  in  the  New  England 
commonwealths  than  elsewhere,  and,  as  pointed  out,  is  largely 
due  to  the  desire  of  the  people  to  legislate  directly  upon  many 
important  questions  and,  by  placing  this  legislation  in  the 
constitutions,  protect  it  absolutely  against  changes  made  by  their 
legislatures.  That  the  general  effect  of  this  is  far  from  good 
seems  obvious.  The  detailed  "  law  provisions  "  of  the  con- 
stitutions soon  become  out  of  harmony  with  the  conditions  they 
are  designed  to  meet,  and  demand  alteration.  This  means  that 
constitutional  readjustments  are  constantly  being  urged,  —  a 
condition  which  is  hardly  wholesome  and  conducive  to  efficient 
administration  of  government.  And  if  changes  are  not  made, 
many  provisions  of  the  constitution  become  unsatisfactory  and 
ineffective,  and  attempts  at  evasion  are  constantly  made.^ 

Development  of  the  Executive.  —  In  connection  with  this 
constitutional  development  and  the  change  in  the  attitude  of 
the  people  toward  their  legislatures,  there  should  be  noted 
another  equally  significant  fact,  and  that  is  the  changing  atti- 
tude of  the  people  toward  their  State  executives.  Whereas  in 
the  beginning  the  executive  branch  of  the  State  governments 
was  distrusted  and  held  an  inferior  place,  with  greatly  restricted 
powers,  it  has  come  to  hold  relatively  a  high  place  in  the  public 
esteem,  and  has  acquired,  through  new  constitutional  grants, 
greatly  augmented  powers  and  responsibilities.  In  a  rough 
way  it  may  be  said  that  as  the  legislatures  declined,  the  execu- 
tives grew  in  popular  favor;  as  the  powers  of  the  legislatures 
diminished,  those  of  the  executives  increased.  Reliance  upon  the 
executive  has  come  to  characterize  more  and  more  the  public 
attitude.  More  and  more  the  natural  leadership  of  the  executive 
has  come  to  be  recognized,  as  has  the  high  importance  of  ad- 
ministrative functions  and  problems.  This  expansion  of  execu- 
tive power  and  growth  in  executive  influence  are  e^'idenced  by 
many  changes  in  the  State  constitutions.     Not  all  of  the  in- 

•  For  further  discussion  of  the  growth  of  State  constitutions  and  the  consequences 
which  result,  see  Jones,  "  Statute  Law  Making  in  the  United  States,"  pp.  4-8,  and 
Bryce,  "The  American  Commonwealth,"  New  and  Revised  Edition,  Vol.  I,  p.  455. 


346  COMPARATIVE  FREE   GOVERNMENT 

crease  in  the  length  of  the  constitutions,  to  which  reference  has 
been  made,  is  due  to  additional  restrictions  upon  the  legislature ; 
some  of  it  is  due  to  new  provisions  imposing  new  duties  upon 
the  executive,  and  conferring  and  regulating  executive  powers. 
The  shift  in  public  sentiment  which  this  implies,  and  the  en- 
larged sphere  of  executive  action  which  has  resulted  from  it, 
constitute  one  of  the  most  deeply  significant  developments  in 
American  politics.  And,  it  is  well  to  note,  this  executive  expan- 
sion has  not  been  confined  to  the  States.  A  similar  change  has 
occurred  in  the  Nation.  The  President  is  vastly  more  powerful 
now  than  in  the  beginning.  Indeed,  it  may  be  said,  that  not  a 
little  of  the  change  that  has  taken  place  in  the  relative  positions 
of  the  legislative  and  executive  departments  of  the  States,  is 
due  to  the  development  of  the  President's  leadership  in  the 
Nation,  and  the  growing  confidence  and  satisfaction  of  the  people 
in  that  leadership.  As  executive  leadership  proved  itself  in  the 
Nation,  the  demand  for  it  sprang  up  and  grew  in  the  States ;  and 
this  demand  has  never  been  more  insistent  than  at  the  present 
time.  All  the  signs  point  to  a  still  larger  development  of  admin- 
istrative functions. 

The  general  plan  of  the  State  governments  is  the  same  as  that 
of  the  Nation.  There  are  the  three  departments,  resting  upon 
a  constitutional  foundation,  each  with  its  own  powers,  its  own 
duties,  and  its  own  sphere  of  action.  In  the  States  as  in  the 
Nation,  the  principle  of  the  separation  of  powers  is  fundamental. 
Consciously,  and  because  of  a  firm  belief  in  the  soundness  of 
this  principle,  the  people  of  the  States  have  set  up  the  three 
departments  and  hedged  them  about  by  restrictions  in  order 
to  protect  them  in  the  enjoyment  of  their  respective  powers  and 
I)revent  encroachments  upon  one  another.  The  departments 
must  touch  one  another  at  certain  points,  of  course,  in  order  to 
make  the  machinery  of  government  run  with  reasonable  smooth- 
ness, but,  nevertheless,  each  has  its  own  work  to  do  and  must 
lie  free  to  do  it  without  unauthorized  interference  by  the  others. 
In  general,  the  same  complex  system  of  checks  and  balances, 
both  legal  and  extra-legal,  is  to  be  found  in  the  States  as  in  the 
Nation.  The  chief  executive  has  his  part  in  legislation,  similar 
to  that  f)f  the  President.  The  legislature  possesses  the  power  of 
impeachment  over  both  executive  and  judicial  oflicers,  and  in 
other  ways  may  influence  them,  much  as  the  Congress  may  do 


STATE  LEGISLATION  347 

with  national  officers.  The  judiciary  may  pass  upon  the  con- 
stitutionality of  the  acts  of  the  legislature,  and  set  aside  exec- 
utive actions  which  lie  outside  the  executive  sphere,  just  as  the 
federal  courts  may  do  in  the  national  field.  By  this  system, 
suggested  here  in  only  general  words,  the  departments  are  kept 
to  the  paths  marked  out  for  them  by  the  State  constitutions. 
The  relation  of  the  departments  to  one  another  will  be  brought 
out  more  in  detail  in  the  description  of  them  given  in  this  and 
succeeding  chapters.  The  first  to  be  considered  is  the  legislature. 
The  State  Legislative  Departments.  —  The  legislatures  of  the 
States  are  all  of  the  same  character,  although  they  differ  more  or 
less  in  their  internal  organization.  Each  is  composed  of  two 
houses,  whose  members  are  chosen  by  popular  vote  from  districts 
into  which  the  States  are  divided.  One  house  is  called  the 
Senate,  and  the  other,  in  most  instances,  is  known  as  the  House 
of  Representatives,  though  in  a  few  cases  it  is  called  "  The 
Assembly  "  and  in  others  "  The  House  of  Delegates."  The 
Senate  is  the  smaller  body  and  is  frequently  spoken  of  as 
the  "  upper  "  house,  while  the  larger  body  is  referred  to  as  the 
"  lower  "  house.  Though  the  two  houses  are  equal,  coordinate 
branches  of  the  legislature,  the  Senate  is  usually  more  influential 
than  the  House  of  Representatives,  and  membership  in  it,  be- 
cause of  its  smaller  size  and  the  fact  that  its  members  represent 
larger  constituencies,  is  everywhere  considered  more  desirable 
than  membership  in  the  lower  house.  The  legislative  powers  of 
the  two  bodies  are  essentially  the  same.  Following  the  national 
plan,  the  power  of  impeachment  belongs  to  the  House  of  Repre- 
sentatives, while  the  duty  of  trying  impeachment  cases  is  im- 
posed on  the  Senate.  To  the  latter,  also,  as  is  the  case  with  the 
national  Senate,  is  given  the  power  to  confirm  many  executive 
appointments.  The  general  nature  of  the  legislative  powers  of 
the  two  houses  has  already  been  discussed  somewhat  at  length 
in  preceding  chapters  and  need  not  be  considered  here.  It  is 
to  be  remembered  that  all  the  original  powers  of  government  are 
vested  in  the  legislature,  except  as  prohibitions  are  placed  upon 
it  by  the  national  and  State  constitutions.  The  powers  which 
the  legislatures  of  the  several  States  may  actually  exercise 
depend  upon  the  State  constitutions.  The  national  Constitu- 
tion, of  course,  applies  to  all  alike,  but  the  restrictions  of  the 
State  constitutions  vary  a  great  deal. 


348       COMPARATIM-:  FREE  GOVERNMENT 

There  is  much  variation,  also,  in  the  size  of  the  legislatures. 
In  the  case  of  the  Senate,  the  number  of  members  varies  from 
seventeen,  in  Delaware,  to  sixty-three,  in  Minnesota.  Two 
States,  New  York  and  Illinois,  have  Senates  with  fifty-one 
members.  In  four  States  the  number  is  fifty ;  in  one,  forty- 
seven  ;  in  two,  forty-five ;  in  two,  forty-four ;  in  three,  forty- 
two  ;  in  four,  forty ;  in  two,  thirty-eight ;  in  four,  thirty-five ; 
in  twelve,  from  thirty  to  thirty-five ;  in  ten,  besides  Delaware, 
less  than  thirty.  The  average  membership  is  about  thirty-seven. 
In  the  case  of  the  House  of  Representatives,  the  variation  is  even 
greater,  and  the  average  membership  much  larger.  The  number 
of  members  runs  from  thirty-five  to  three  hundred  and  ninety. 
In  five  States  the  House  numbers  more  than  two  hundred.  In 
thirty  States  the  number  is  one  hundred  or  more,  sixteen  of  these 
having  a  House  membership  of  from  one  hundred  to  one  hundred 
and  twenty.  In  twelve  States  the  number  is  below  seventy- 
five. 

The  qualifications  of  members  of  the  legislature  are  fixed  by 
the  State  constitutions.  These  differ  a  good  deal.  There  is 
usually  an  age  requirement  for  eligibility,  that  of  a  Senator  being 
higher  ordinarily  than  that  of  a  Representative ;  say,  thirty  and 
twenty-five  years.  In  some  States  the  age  is  fixed  at  twenty- 
five  and  twenty-one  years.  Residence  within  the  district  rep- 
resented is  the  regular  rule.  This  may  be  required  either  by  the 
constitution  or  by  law.  The  residence  rule,  it  should  be  said, 
is  practically  always  observed  in  the  United  States,  with  respect 
to  all  elective  ofiices.  Other  eligibility  restrictions  also  may  be 
imposed  on  State  legislators,  as,  for  instance,  the  exclusion  of 
certain  classes  of  persons.  Public  officers  receiving  salaries  are 
regularly  excluded. 

In  a  majority  of  the  States  the  term  of  office  of  Senators  is 
longer  than  that  of  Representatives.  In  nineteen  States,  how- 
ever, the  term  is  the  same.  In  a  few  more  than  half  of  the 
States  the  senatorial  term  is  four  years.  In  most  of  the  others 
it  is  two  years,  only  two  having  a  one-year  term.  One,  New 
Jersey,  has  a  three-year  term  for  Senators.  In  ahnosi  all  of  the 
States  the  Representatives  serve  for  two  years.  The  exceptions 
are  four  States  where  the  term  is  one  year,  and  three  where  it  is 
four  years.  With  the  exception  of  two  of  the  Slates  having  a 
four-year  term,  Representative's  are  elected  for  only  one  regular 


STATE  LEGISLATION  349 

session  of  the  legislature.  In  Louisiana  and  Mississippi  both 
Representatives  and  Senators  serve  during  two  regular  sessions. 
The  ordinary  rule,  in  those  States  where  the  term  of  Senators 
is  twice  that  of  Representatives,  is  that  only  half  the  Senators 
are  elected  at  one  time,  thus  making  the  Senate  a  permanent 
body,  similar,  in  this  respect,  to  the  United  States  Senate. 

With  respect  to  compensation  of  legislators  the  practices  of 
the  States  also  differ.  In  thirty-one  States  the  compensation  is 
a  fixed  sum  per  day,  ranging  from  three  to  ten  dollars.  In  almost 
all  of  these  the  legislative  session  is  limited  to  a  stated  number  of 
days.  In  only  one,  Vermont,  where  a  per  diem  salary  of  three 
dollars  is  provided,  is  there  no  limit  to  the  number  of  days  the 
legislature  may  remain  in  session.  In  two  States,  Rhode  Island 
and  Texas,  there  is  no  limit  to  the  legislative  session,  but  the 
compensation  is  limited  to  five  dollars  per  day  for  a  period  not 
exceeding  sixty  days.  In  nine  States  there  is  a  regular  per 
annum  salary,  ranging  from  one  hundred  and  fifty  to  fifteen 
hundred  dollars.  Five  States  pay  a  fixed  salary  for  each  regular 
session,  the  amount  varying  from  four  hundred  to  one  thousand 
dollars. 

In  most  of  the  States  the  legislatures  hold  biennial  sessions. 
In  only  six  is  there  an  annual  session.  One,  Alabama,  has  a 
quadrennial  meeting  of  its  legislature.  In  the  great  majority 
of  the  States  the  sessions  begin  sometime  in  January,  the  exact 
day  being  prescribed  by  law.  As  previously  suggested,  the  ses- 
sions are  frequently  limited  to  a  certain  number  of  days.  Seven- 
teen States  fix  no  limit.  In  the  others  the  sessions  vary  from 
forty  to  ninety  days. 

Legislative  Organization  and  Procedure.  —  Each  house,  when 
the  legislature  convenes,  organizes  for  work  by  the  election  of  a 
staff  of  officers,  the  appointment  of  committees,  and  the  adoption 
of  rules  of  procedure.  The  Lieutenant-Governor  of  the  State 
is  usually  the  presiding  officer  in  the  Senate  and  bears  the  title, 
President  of  the  Senate.  Frequently  he  appoints  the  Senate's 
committees.  Where  this  is  not  the  rule,  the  committees  are 
elected  by  the  Senate,  as  is  done  in  the  Congress  of  the  United 
States.  The  power  to  appoint  the  committees  gives  to  the  Lieu- 
tenant-Governor great  influence  upon  the  work  of  the  Senate, 
although  he  is  not  elected  as  a  legislative  officer.  Not  infre- 
quently important  committees  are  made  up  in  a  way  to  prevent 


350  COMPARATIVE   FREE   GOVERNMENT 

legislation  to  which  the  Lieutenant-Governor  and  his  friends  are 
opposed.  In  the  House  of  Representatives,  the  presiding  officer 
is  elected  by  the  House  and  is  known  as  the  Speaker.  He 
appoints  the  standing  committees.  In  addition  to  the  presiding 
officers,  there  is  in  each  house  a  large  number  of  officers  and 
employees,  including  a  chief  clerk,  reading  clerk,  sergeant-at-arms, 
doorkeeper,  and  their  assistants,  and  many  committee  clerks, 
secretaries,  and  messengers.  These  are  all  technically  elected 
by  the  houses.  In  reality,  however,  the  selection  of  all  the  im- 
portant officers  is  made  by  the  party  caucuses,  just  as  is  done  in 
the  Congress.  The  majority  party  in  each  house  fills  all  the 
chief  places  and  most  of  the  inferior  places  with  its  own  adherents, 
leaving  to  the  minority  party  only  a  few  offices  of  minor  con- 
sequence. The  committees  are  made  up  so  as  to  give  the  ma- 
jority party  control  of  each  by  a  safe  margin.  Each  house,  it 
thus  is  seen,  is  always  organized  on  strict  party  lines,  although 
the  amount  of  strict  party  voting  in  the  legislatures  is  very  slight. 
In  the  process  of  organization,  the  election  of  the  Speaker  of 
the  lower  house  is  usually  the  event  of  most  interest  and  con- 
cern. As  in  the  national  House  of  Representatives,  the  actual 
selection  of  the  Speaker  is  made  by  the  caucus  of  the  dominant 
party,  the  election  by  the  House  being  only  a  formal  ratification 
of  the  caucus  action. 

By  the  State  constitutions  each  house  is  authorized  to  pre- 
scribe its  own  rules  of  procedure.  Some  important  regulations, 
though,  are  set  up  by  the  constitutions  themselves  which,  of 
course,  the  houses  cannot  change,  such  as  the  requirements  that 
bills  shall  be  read  three  times,  that  every  act  shall  embrace  but 
one  subject  and  this  subject  shall  be  clearly  expressed  in  the  title, 
that  a  majority  of  each  house  shall  constitute  a  quorum,  and 
that  the  yeas  and  nays  shall  be  called  upon  the  request  of  the 
designated  number  of  members.  Except  where  constitutional 
restrictions  interfere,  however,  the  houses  may  adopt  whatever 
procedural  regulations  they  may  prefer.  These  cover  the  prej)- 
aration  and  introduction  of  bills  and  resolutions,  their  reference 
to  committees,  their  debate  and  amendmcnl  in  the  houses, 
and  all  the  other  steps  which  must  be  observed  in  the  enactment 
of  laws.  The  number,  size,  and  jurisdiction  of  the  committees 
also  are  regulated  l)y  the  rules,  as  are  the  order  of  business  and 
the  duties  of  officers. 


STATE  LEGISLATION  35 1 

Without  going  into  the  details  of  a  typical  procedural  system, 
attention  may  be  called  to  the  great  importance  of  the  legisla- 
ture's rules.  The  efficiency  of  the  legislature  is  determined  to  a 
large  extent  by  them.  However  good  may  be  the  intentions  of 
the  legislators,  the  value  of  their  service  is  affected  materially 
by  the  procedure  which  they  must  observe.  That  the  State 
legislatures  have  failed,  in  most  instances,  to  provide  rules  which 
promote  efficiency  in  the  processes  of  legislation  is  one  of  the 
outstanding  facts  revealed  by  a  study  of  their  methods  and  the 
character  of  their  work.  It  should  be  mentioned,  however,  that 
much  of  the  fault  which  attaches  to  the  State  legislatures  is 
not  due  to  the  failure  to  adopt  rules  of  procedure,  which,  if 
observed,  would  prove  fairly  satisfactory;  it  is  due  in  part  to 
the  non-observance  of  the  rules  which  are  adopted.  It  is  a 
familiar  though  significant  fact  that  the  formal  procedure  which 
the  rules  prescribe  is  by  no  means  always  the  one  which  is  ob- 
served. Not  infrequently  the  rules  are  practically  set  aside  and 
bills  are  rushed  through  without  regard  to  the  normal  require- 
ments. If  the  leaders  of  the  majority  and  minority  groups  are 
agreed  —  and  such  agreement  is  common  —  great  laxness  in  the 
observ^ance  of  the  rules  is  likely  to  prevail.  This  lax  procedure, 
as  Professor  Reinsch  remarks,  "  has  been  encouraged  through 
the  general  apathy  of  the  people  towards  the  State  legislatures." 
The  people  as  a  rule  give  little  thought  to  legislative  procedure 
about  which  they  are  generally  ignorant.  "So  it  has  come 
about  that  in  States  where  the  majority  party  has  a  strong 
organization  or  machine,  the  various  forms  of  procedure  have 
been  treated  as  fictions,  and  the  legislative  body  has  automati- 
cally registered,  in  the  last  days  of  the  session,  and  with  a  down- 
right disregard  of  rules,  those  pieces  of  legislation  which  the 
party  managers  had  agreed  upon.  Thus  it  is  very  common  that 
the  full  readings  of  bills  required  by  the  constitution  are  entirely 
dispensed  with,  that  the  committee  action  on  certain  bills  is 
treated  as  a  pure  formality,  that  objections  and  demands  for 
roll-calls  are  ignored,  and  even  that  votes,  which  in  fact  were 
hisufficient,  are  recorded  as  satisfying  the  legal  requirements."  ^ 
It  is  plain,  therefore,  that  a  m€re  study  of  the  formal  organiza- 
tion and  procedure  of  the  State  legislatures  will  give  both  an  in- 
adequate and  a  false  view  of  these  important  governmental 

'  Reinsch,  "  American  Legislatures  and  Legislative  Methods,"  p.  160. 


352  CO^IPARATIVE   FREE   GOVERNMENT 

bodies.  With  them,  as  with  all  the  agencies  of  government, 
the  vital  thing  is  the  manner  in  which  they  actually  work,  and 
not  the  way  in  which  they  were  intended  to  work.  It  cannot 
be  denied  that  the  procedure  prescribed  by  the  rules  commonly 
adopted  by  the  State  legislatures  is  far  from  perfect ;  but  it  is 
equally  indisputable  that  much  better  results  could  and  would 
be  attained  if  the  requirements  of  the  rules  were  accorded  the 
respect  that  is  their  due. 

Character  of  the  Legislatures'  Work.  —  As  the  foregoing  dis- 
cussion indicates,  the  work  of  the  State  legislatures  is  far  from 
satisfactory.  jMany  reasons  for  this  exist.  ]\luch  of  the  work 
is  done  with  indifferent  spirit  and  in  careless  manner.  The  laws 
enacted  are  often  very  faulty  in  character,  with  respect  to  both 
form  and  content.  Responsibility  for  what  is  done  is  often 
difficult,  if  not  impossible,  to  determine.  The  committee  system 
is  usually  cumbersome  and  preventive  of  harmonious  action, 
—  the  committees  being  too  many  in  number  and  too  large  in 
size.  Publicity  as  to  committee  procedure  is  usually  lacking. 
Objectionable  lobbying  and  improper  influence  upon  legislators 
are  frequently  brought  to  light.  Narrow  party  spirit  is  too  often 
displayed.  Members  of  legislatures  are  too  frequently  unfitted 
for  legislative  service,  through  lack  of  ability,  training,  serious 
purpose,  or  appreciation  of  the  responsibilities  of  their  positions. 
Because  of  a  rather  distrustful,  suspicious  attitude  on  the  part 
of  the  general  jjublic,  coupled  with  the  necessity  of  making  a 
vigorous  campaign  to  obtain  an  election,  many  men  of  character 
and  ability  are  disinclined  to  seek  legislative  service.  Moreover, 
the  salaries  of  members  are  usually  so  small  that  they  do  not 
compensate  for  the  sacrifices  demanded  by  the  j)olitical  cam- 
[)aigns  and  the  time  which  must  be  devoted  to  legislative  duties. 
Furthermore,  the  increasing  number  of  constitutional  restric- 
tions upon  legislative  powers  has  made  service  in  the  legislatures 
unattractive  to  many  men  of  talent  and  capacity  for  leadership 
in  jiublic  affairs.  For  these,  and  other  reasons,  the  State  legis- 
latures have  failed  to  measure  up  to  a  very  high  standard.  The 
natural  consequence  has  been  that,  as  the  people  have  become 
aroused  to  the  need  of  more  responsive  and  efficient  government, 
a  demand  has  sprung  u[)  for  fundamental  changes  in  legislative 
organization  and  methods.  Three  of  the  leading  reform  move- 
ments may  be  noted,  those  to  provide  for  scientific  legislation, 


STATE  LEGISLATION  353 

to  bring  about  thorough  reorganization  of  the  State  legislatures, 
and  to  promote  direct  legislation.  Only  brief  comment  upon 
these  is  here  necessary. 

The  movement  for  higher  standards  of  legislation  is  of  recent 
origin  and  thus  far  has  involved  two  important  proposals. 
One  is  the  establishment  of  legislative  reference  libraries  or 
bureaus  for  the  purpose  of  collecting  information  needed  by  the 
legislature  in  the  formulation  of  policies  and  of  assisting  legis- 
lators in  preparing  for  their  duties.  The  other  is  the  establish- 
ment of  drafting  bureaus  where  bills  may  be  put  in  proper  form 
by  experts  in  the  art  of  drafting  laws.  It  is  an  indisputable  fact 
that  the  great  majority  of  State  legislators  have  neither  the 
knowledge  nor  the  ability  necessary  for  the  proper  framing  of 
laws  dealing  with  many  of  the  difficult,  complex  questions  to 
which  modern  industrial  conditions  have  given  rise.  The  need 
for  accurate  information,  so  that  the  laws  enacted  will  ade- 
quately fit  the  conditions  which  they  are  designed  to  meet,  and 
the  need  for  expert,  scientific  drafting  of  laws,  so  that  they  will 
fit  perfectly  into  the  existing  body  of  law  and  meet  all  the  consti- 
tutional requirements,  thus  being  able  to  stand  the  severe  test  of 
judicial  scrutiny,  are  among  the  genuinely  vital  needs  of  the 
American  legislatures.  Recognition  of  this  fact  has  been  grow- 
ing rapidly  in  recent  years  and  a  number  of  States,  following  the 
lead  of  Wisconsin,  have  established  reference  libraries  which  are 
rendering  service  of  the  very  highest  value.  Some  of  the  States, 
also,  have  provided  for  olficial  draftsmen.  The  growing  con- 
sciousness of  the  value  of  well-framed  laws  and  the  great  con- 
fusion and  loss  from  faultily  drawn  measures,  with  the  conse- 
quent burdens  they  impose  upon  the  courts,  give  cause  to 
think  that  in  time  all  of  the  States  will  make  adequate  provision 
for  assisting  legislators  along  both  of  these  lines. 

The  movement  for  reorganization  of  the  State  legislatures 
looks  to  fundamental  structural  changes.  A  number  of  dif- 
ferent plans  have  been  suggested,  all  seeking  the  same  end,  — 
greater  legislative  efficiency,  more  responsiveness  to  public 
opinion,  more  direct  responsibility,  simplification  of  the  legisla- 
tive process,  a  higher  type  of  legislator,  and  more  capable 
leadership.  All  of  the  suggestions  contemplate  a  marked  reduc- 
tion in  the  membership  of  the  legislatures,  particularly  that  of 
the  lower  and  most  numerous  branch.     The  most  radical  and 


354  COMPARATIVE  FREE  GOVERNMENT 

most  interesting  proposal  is  to  abolish  the  bicameral  legislature 
and  substitute  a  single  chamber,  with  a  relatively  small  member- 
ship, in  which  the  chief  executive  ofiEicers  should  have  seats. 
This  plan,  which  involves  the  payment  of  adequate  salaries  and 
calls  for  the  entire  time  of  the  legislators,  has  met  with  a  good 
deal  of  public  favor,  and  there  is  fair  prospect  that,  sooner  or 
later,  it  will  be  adopted  by  one  or  more  of  the  States.  It  is  to 
be  borne  in  mind,  however,  that  the  bicameral  legislature  is 
deeply  rooted  in  American  experience,  and  the  overthrow  of  so 
old  an  institution  is  a  work  of  difficulty.  In  all  the  history 
of  the  American  States,  only  three  have  experimented  with  a 
single  chamber  legislature,  and  even  in  these  an  executive  council 
was  provided  as  a  check  upon  the  legislature.  Not  since  1836, 
when  Vermont  abolished  the  council  and  divided  the  legislature 
into  two  houses,  has  the  unicameral  plan  been  used.  With  the 
merits  of  these  reform  projects,  it  is  not  the  purjwse  here  to  deal. 
Attention  should  be  called,  however,  to  the  growth  of  the  senti- 
ment in  favor  of  a  closer  relation  between  the  legislative  and 
executive  departments.  A  waning  of  the  popular  faith  in  the 
rather  extreme  separation  of  these  departments,  so  characteristic 
of  American  government,  is  clearly  discernible.  The  belief  is 
undoubtedly  growing  that  the  presence  in  the  legislative  as- 
sembly of  the  heads  of  the  chief  executive  departments  would 
be  in  the  interest  of  better  legislation,  as  well  as  more  efficient 
administration.  That  this  belief  is  well  founded,  there  is 
abundant  evidence  to  show. 

The  third  legislative  reform  mentioned,  and  the  one  which 
has  made  greatest  progress,  is  the  movement  for  direct  legisla- 
tion through  the  popular  initiative  and  referendum.  Repre- 
sentative government,  both  in  State  and  in  Nation,  controlled 
largely  by  the  exigencies  of  party  politics  and  confronted  by  the 
great  industrial  problems  and  forces  which  have  developed,  has 
proven  far  from  i)crfect.  In  fact,  in  the  minds  of  many  persons, 
apparently  increasing  in  number,  it  has  proven  inadcciuate,  if  it 
has  not  actually  broken  down.  The  State  legislatures,  ])artic- 
ularly,  under  the  influence  and  sometimes  the  domination  of 
political  bosses  anrl  big  business  interests,  have  been,  as  has 
been  j)ointcd  out,  indifferent  in  their  work  and  unresponsive 
to  public  opinion  and  the  desires  of  a  developing  democracy. 
The  result  has  been  a  demand  for  direct  participation  by  the 


STATE   LEGISLATION  355 

voters  in  the  work  of  legislation.  In  a  number  of  States  amend- 
ments to  the  constitution  have  been  put  through  which  give  to 
qualified  electors  the  right,  upon  petition,  to  initiate  legislation 
and  decide  at  the  polls  whether  it  shall  become  law,  as  well  as 
the  right  to  demand  a  referendum  upon  bills  passed  by  the  legis- 
lature. That  the  movement  for  direct  legislation  is  gaining  in 
force  cannot  be  questioned.  In  more  and  more  States  the  de- 
mand is  growing  for  constitutional  amendments  providing  for  the 
initiative  and  referendum.  The  experience  of  the  States  that 
have  adopted  the  plan  of  direct  legislation  is  being  observed 
and  studied  by  the  others,  as  a  basis  upon  which  to  determine 
their  own  actions.  The  extent  to  which  this  movement  will 
develop  is  a  matter  for  conjecture  only,  as  is  the  ultimate  eiTect  of 
it  upon  the  legislative  assemblies.  In  the  minds  of  some,  a 
general  acceptance  of  the  initiative  and  referendum  will  cause 
a  still  further  weakening  of  the  State  legislatures  and  a  still 
further  loss  in  prestige  and  efficiency.  In  the  minds  of  others, 
the  opposite  effect  will  result,  and  the  true  representative  prin- 
ciple will  be  strengthened  and  the  legislatures  improved  in  char- 
acter and  influence.  Time  must  tell  which  opinion,  if  either,  is 
correct.^ 

It  is  to  be  noted  that  the  legislative  reforms  mentioned  are  not 
antagonistic  to  one  another.  They  are,  in  fact,  supplementary 
to  one  another.  Whatever  the  effect  of  direct  legislation  may  be 
upon  the  legislative  assembhes,  it  is  nowhere  contemplated  that 
the  legislatures  shall  be  abolished.  Whether  composed  of  two 
houses  or  one  house,  the  legislature  is  certain  to  be  an  important 
organ  of  government,  and  the  same  need  will  exist  for  closer 
affiliation  with  the  executive  leaders,  and  for  expert  assistance 
and  accurate  information  in  the  drafting  of  laws,  as  now  exists. 
With  all  of  its  weaknesses  and  faults,  with  all  of  the  changes  that 
are  likely  to  occur,  the  State  legislature  will  continue  to  hold  a 
vital  place  in  the  American  system,  and  if  some  of  the  reforms 
contemplated  are  carried  out,  and  work  as  they  are  anticipated 
to  v^ork,  it  will  acquire  a  position  and  influence  such  as  it  has  not 
had  since  the  early  days  of  the  Republic,  for  these  reforms  look 
to  the  strengthening  of  the  legislature  and  not  to  its  injury. 

The  States  as  Political  Experiment  Stations.  —  In  connection 
with  this  discussion  of  the  legislatures  and  their  work,  and  as 
>  For  discussion  of  direct  legislation  in  Switzerland,  see  Chap.  LIII. 


356  COMPARATIVE   FREE   GOVERNTMENT 

illustrating  the  part  which  they  will  undoubtedly  continue  to 
play  in  American  poUtics,  attention  may  be  called  to  the  pro- 
foundly significant  part  which  the  States  have  in  solving  the 
problems  of  free  government.  The  possession  of  the  inherent 
or  original  powers  of  government  and  their  independence  with 
respect  to  the  control  of  their  own  affairs  give  to  the  States  a 
strategic  position  ;  and  it  is  to  be  remembered  that,  except  as  the 
State  constitutions  forbid,  these  inherent  powers  are  exercisable 
by  the  legislatures.  The  States,  acting  through  their  legislatures 
as  well  as  by  direct  legislation,  may  be,  if  they  wish,  great 
experiment  stations  for  the  development  and  testing  of  new 
institutions  of  government,  for  trying  new  policies,  and  evolving 
new  methods  of  administration.  They  are  frequently  spoken  of 
as  political  laboratories ;  and  such  they  arc,  to  a  greater  or  less 
degree,  to  the  enrichment  of  the  political  life  of  the  whole  Nation. 
The  States  are  so  related  to  one  another  and  to  the  national  gov- 
ernment, that  each  can  experiment  in  the  solution  of  problems 
that  are  common  to  many  or  all  of  them.  The  possible  ad- 
vantages of  this  are  so  obvious  that  comment  upon  them  is 
unnecessary.  A  number  of  States  with  a  common  problem, 
under  similar  conditions,  may  be  seeking  its  solution  along 
radically  different  lines.  Some  may  fail  and  some  may  succeed. 
By  a  comparative  study  of  their  experiences  and  the  results 
attained,  the  policy  best  suited  for  all  of  the  States  interested 
may  be  discovered.  By  this  procedure  much  time  and  a  great 
waste  of  energy  and  of  money  may  often  be  avoided. 

It  must  be  said,  however,  that  the  States  have  not  utilized 
to  the  extent  possible,  the  opportunity  that  is  always  before 
them  to  carry  forward  political  experiments  which  may  prove 
mutually  helpful.  In  fact,  though  in  recent  years  a  number  of 
States  have  Ijoldly  tried  new  policies  and  new  devices  in  their 
attempts  to  achieve  a  more  genuinely  popular  government,  the 
general  tendency  in  the  past  has  been  to  adhere  to  a  markedly 
uniform  scheme  of  government  and  to  oppose  innovations.  The 
result  has  been  less  advance  than  might  reasonably  have  been 
expected.  This  situation  is  undoubtedly  clianging,  however, 
and  under  the  influence  of  the  great  democratic  movement  which 
has  been  developing  for  a  mmiber  of  years  and  is  now  rapidly 
gaining  headway,  the  States  :iic  bci oming  more  active  and  more 
iiK  lined  lo  venture  \\\nm  untrodrlcn  jKilhs  and  to  test  by  actual 


STATE  LEGISLATION  357 

experience  new  principles  and  new  theories.  The  reference 
here,  of  course,  is  to  principles  and  theories  hitherto  untried  by 
the  American  States,  not  necessarily  new  to  the  experience  of 
foreign  countries.  It  is  in  the  States,  indeed,  that  the  growing 
democratic  spirit  and  the  demand  for  the  democratization  of 
government  in  all  of  its  agencies,  have  first  revealed  themselves 
and  have  been  most  insistent.  Naturally  the  influence  of  this 
movement  for  a  more  thoroughgoing  democracy  in  the  States 
has  extended  to  the  Nation  and  now  no  branch  of  government, 
national,  State,  or  local,  is  free  from  it. 

To  illustrate  the  service  of  the  States  in  this  connection, 
reference  may  be  made  to  some  of  the  great  reforms  in  govern- 
ment achieved  by  them  in  recent  years.  One  of  the  most  notable 
of  these  is  the  legalization  of  the  political  parties  and  their 
functions  and  the  thorough  overhauUng  of  the  procedure  for 
the  nomination  of  candidates  for  public  office  through  the  enact- 
ment of  popular  or  direct  primary  laws.  The  old  voluntary 
convention  system,  evolved  by  the  political  parties,  unrestrained 
by  law,  is  rapidly  being  supplanted  by  direct  primaries.  In 
practically  all  the  States  the  primary,  in  one  form  or  another,  is 
in  operation.  In  a  majority  of  them,  a  statewide  primary  pre- 
vails, applying  to  United  States  Senators,  members  of  the 
House  of  Representatives,  Governors,  and  other  State  officers, 
as  well  as  to  members  of  the  State  legislatures  and  to  local  offi- 
cials. And,  as  pointed  out  in  the  discussion  of  the  party  system, 
a  strong  demand  has  developed  for  the  nomination  of  presidential 
candidates  by  a  similar  method. ^  The  whole  purpose  of  these 
laws  is  to  popularize  the  State  governments  by  making  the  party 
organizations  legal  institutions  and  giving  the  members  of  each 
party  the  right  to  choose  the  party  candidates.  Discussion  of 
whether  the  ultimate  results  of  the  primary  plan  will  be  what 
has  been  hoped  for  does  not  lie  within  the  scope  of  this  book ; 
opinions  differ  radically  upon  this,  and  a  much  longer  experience 
with  the  system  is  needed  before  final  judgment  may  be  made. 
It  may  be  assumed  with  some  assurance,  however,  that  popular 
nominations,  by  one  plan  or  another,  have  come  to  stay  and  that 
the  direct  primary  will  in  time  be  extended  to  all  the  States. 

Many  other  new  governmental  devices  and  policies  are  being 
tested  by  some  of  the  States,  which  are  being  scrutinized  care- 
'  Above,  p.  203. 


358  COMPAR.\TIVE   FREE   GOVERNMENT 

fully  and  to  a  greater  or  less  extent  copied  by  the  others.  Among 
these,  in  addition  to  the  initiative  and  referendum  previously 
discussed,  may  be  mentioned  the  recall  of  pubUc  officers,  includ- 
ing judges  of  the  State  courts,  by  popular  vote,  —  a  reform  which 
is  new  and  which  only  a  few  States  have  adopted ;  control  of 
pul)lic  utilities,  local  as  well  as  State,  by  State  commissions ; 
public  ownership  of  municipal  utiUties ;  taxation  reforms  and 
centraHzed  tax  administration ;  legislation  for  the  construction 
of  permanent  highways ;  cooperative  enterprises  of  various 
kinds ;  the  short  ballot ;  stringent  corrupt  practices  acts  and 
control  of  election  expenditures ;  State  insurance ;  and  social 
justice  or  social  welfare  legislation,  such  as  minimum  wage, 
child  labor,  and  workingmen's  compensation  laws,  and  mothers' 
pensions.  As  stated  previously,  the  States  have  become  very 
active  in  recent  years  in  the  enactment  of  social  welfare  legisla- 
tion, and  the  keenest  interest  is  shown  in  the  legislative  experi- 
ments of  the  more  advanced  States.  A  plan  which  proves  suc- 
cessful in  one  State  is  certain  to  be  adopted,  in  whole  or  in  part, 
by  some  of  the  others.  Some  experimentation  is  always  in 
progress,  and  through  a  comparative  study  of  the  results  all  of 
the  States  are  enlightened  and  helped.  The  benefit  which  comes 
from  this  mutual  exchange  of  ideas  and  experiences  is  too  mani- 
fest to  i>e  seriously  questioned.  Whatever  may  be  thought  of 
specific  measures  that  may  be  enacted,  it  must  be  admitted 
that  one  of  the  distinct  advantages  that  comes  from  the  federal 
system  of  government  lies  in  the  reaction  of  the  States  upon 
one  another  in  their  attempts  to  solve  difficult  ])roljlcms  which 
are  of  common  interest. 

Uniform  Legislation.  —  Complete  diversity  of  laws,  each 
State  going  its  own  way,  no  matter  how  similar  the  conditions 
may  be,  is  plainly  not  desirable.  On  the  other  hand,  absolute 
uniformity  is  harrlly  to  be  desired.  Such  a  condition  would  lend 
to  check  progress  in  meeting  adequately  the  problems  that  arise. 
It  is  of  supreme  vahie  to  I  he  American  democracy  to  have  the 
individual  States  free  to  handle  their  own  peculiar  problems  in 
their  own  way.  There  are  .some  questions,  howexcr,  upon  which 
uniform  laws  would  be  of  great  benefit,  though  these  questions, 
under  the  constitutional  arrangement  that  exists,  are  exclu- 
sively within  the  jurisdiction  of  each  Stale.  Marriage  and 
divorce  may  be  cited  as  examples,      if  iIk    laws  of  one  Slate 


STATE   LEGISLATION  359 

upon  these  questions  are  very  stringent  and  those  of  an  adjoining 
State  are  very  lax,  it  is  evident  that  the  purpose  of  the  former 
can  easily  be  defeated  by  the  latter.  The  advantage  of  having 
the  same  law,  or  substantially  the  same  law,  prevail  in  both 
States  is  clear.  Some  of  the  States  have  had  at  times  rather 
unsavory  reputations  because  of  the  resort  to  them  by  people 
from  other  States  for  the  purpose  of  taking  advantage  of  their 
lax  divorce  requirements.  There  is  Httle  reason  to  doubt  that 
a  satisfactory  uniform  law  on  this  subject  would  be  in  the  interest 
of  morality  and  public  welfare. 

It  is  perhaps  in  connection  with  the  control  of  industry  and 
business,  however,  that  the  need  for  uniformity  is  most  notice- 
able. Restrictive  legislation  designed  to  remedy  abuses  or 
prevent  evils  in  business  is  difficult  of  enforcement  in  a  State, 
if  other,  perhaps  adjoining  States,  do  not  have  laws  of  a  similar 
character.  Control  of  this  kind,  though  it  may  be  proper  control 
and  clearly  in  the  interest  of  the  general  public  welfare,  may  in 
fact  impose  burdens  upon  business  enterprises  which  they  cannot 
successfully  carry  in  competition  with  similar  businesses  in 
other  States  that  are  free  from  such  control.  Difficulties  of 
this  nature  have  frequently  prevented  in  some  States  the  enact- 
ment of  laws  greatly  needed  for  the  protection  of  helpless  classes 
of  people.  For  instance,  the  passage  of  child  labor  laws  has 
been  much  retarded,  and  in  some  instances  prevented,  by  the 
fact  that  industries  to  which  the  laws  applied  would  be  compelled 
to  compete  with  those  of  other  States  in  which  similar  laws  did 
not  exist.  Yet  adequate  protection  of  child  workers  is  necessary. 
Similar  situations  arise  in  connection  with  minimum  wage  laws, 
workingmen's  compensation  laws  and  other  restrictive  social 
welfare  legislation.  The  difficulty  is  a  very  real  one  and  the 
progress  of  movements  for  the  protection  of  workers  and  the 
improvement  of  industrial  conditions  has  been  delayed  materially 
by  it.  If  all  of  the  States,  or  those  of  them  interested  in  a  par- 
ticular problem,  could  be  induced  to  act  uniformly,  it  is  undeni- 
able that  the  solution  could  be  found  for  many  questions  which 
are  as  yet  unsolved.  But  experience  has  shown  that  it  is  ex- 
tremely difficult  to  obtain  this  uniform  action,  notwithstanding 
the  marked  incUnation  of  the  States  to  copy  from  one  another. 
Unquestionably,  however,  there  is  a  growing  sentiment  in  favor 
of  concerted  action  in  some  matters,  and  it  may  reasonably  be 
expected  that  in  time  uniform  laws  will  be  more  common. 


360  COMPARATIVE   FREE   GOVERNMENT 


REFERENCES 

Beard.  American  Government  and  Politics,  Edition  1914,  Chaps.  XXIII, 
pp.  461-471,  XXV. 

Bryce.  The  American  Commonwealth,  Edition  1910,  Vol.  I,  Chaps.  XXXIX, 
XL. 

Dealey.  Growth  of  American  State  Constitutions,  Chaps.  I  to  VIII,  inclu- 
sive, XV,  XVI,  XVII. 

Jones.     Statute  Law  Making  in  the  United  States,  Chaps.  I,  II,  III. 

McCarthy.     The  Wisconsin  Idea,  Chaps.  VIII,  IX. 

Proceedings,  American  Political  Science  Association,  1907,  \'ol.  IV,  pp.  69- 
137;    1913,  Vol.  X,  pp.  191-233- 

Ray.  An  Introduction  to  Political  Parties  and  Practical  Politics,  Chaps. 
XVIII,  XIX,  XX. 

Reinsch.  American  Legislatures  and  Legislative  Methods,  Chaps.  IV  to  X, 
inclusive. 

Reinsch.     Readings  on  American  State  Government,  Chap.  II. 


CHAPTER  XXVIII 

State  Administration 

Decentralization  characterizes  the  executive  organizations 
in  the  States.  In  this  respect  the  State  governments  differ 
materially  from  the  government  of  the  Nation.  Executive 
power  in  the  States  is  not  centered  in  one  chief  executive,  as  the 
executive  power  of  the  Nation  is  centered  in  the  President ;  on 
the  contrary,  it  is  divided  among  a  number  of  State  officers  and 
commissions,  some  of  whom  are  entirely  independent  of  control 
by  the  nominal  chief  executive,  the  Governor.  The  State 
administrative  system  is  not  a  unit ;  its  parts  do  not  constitute 
a  hierarchy  of  administrative  agencies,  each  carefully  adjusted 
to  the  others  with  a  view  to  obtaining  the  highest  efficiency. 
Thus  far  the  fact  which  stands  out  with  most  striking  clearness 
in  connection  with  the  governments  of  the  States  is  this  decen- 
tralization in  administration,  this  diffusion  of  executive  power, 
with  its  consequent  diffusion  of  responsibility.  The  extent  to 
which  this  policy  has  been  carried  and  the  results  which  flow 
from  it,  will  be  indicated  in  the  discussion  that  follows.  It  is 
suggested  here,  merely,  that  decentralization,  though  it  is  natural 
for  the  States,  considering  the  circumstances  which  prevailed 
at  the  time  the  Union  was  formed  and  the  traditions  of  the 
American  people,  has  proven  very  ineffective  under  modern 
conditions,  and  constitutes  one  of  the  grave,  urgent  problems 
of  the  present  day. 

The  fact  is  to  be  emphasized  that  the  administrative  organiza- 
tion which  prevails  in  the  States  was  developed  under  conditions 
that  were  very  different  from  those  that  now  exist.  When  the 
Union  was  formed  the  functions  of  the  State  governments  were 
few  in  number  and  simple  in  character.  The  general  social  and 
industrial  life  was  far  from  complex.  The  States  were  not 
organized  to  engage  in  large  operations  such  as  they  are  now 
called  upon  to  undertake,  and  consequently  the  administrative 

361 


362  COMPARATIVE   FREE    GOVERNMENT 

machinery  is  not  adapted  for  the  work  they  must  do.  Govern- 
mental institutions  and  processes,  if  they  are  to  prove  adequate, 
must  change  with  changing  conditions  and  problems.  In  the 
case  of  the  States  this  necessary  development  has  not  occurred, 
with  the  result  that  they  are  falling  far  short  of  what  they  should 
achieve  and  what,  in  some  manner,  they  must  be  made  to 
achieve.  The  conclusion  is  inescapable  that  the  State  govern- 
ments must  undergo  important  changes  before  they  will  be  able 
successfully  to  do  the  work  which,  under  the  American  system, 
they  alone  can  do.  That  this  is  becoming  apparent  to  the  people 
of  the  States  is  one  of  the  significant  developments  of  recent 
years. 

The  Governor.  —  In  describing  the  State  administration,  it 
is  natural  to  begin  with  the  Governor,  who  is  looked  upon  as  the 
chief  executive  and  the  head  of  the  State  government.  Each 
State  has  its  Governor  and  except  in  one  instance,  Mississippi, 
he  is  everywhere  elected  by  popular  vote.^  He  is  practically 
always  a  party  man,  nominated  for  his  position  at  a  party  pri- 
mary or  convention,  and  elected  as  a  partisan.  Quite  generally 
he  is  looked  upon  as  the  head  of  his  party  in  the  State,  for  the 
time  being,  though  sometimes  he  is  overshadowed  in  this 
respect  by  a  United  States  Senator  or  by  an  unoflicial  party 
boss.  The  position  he  holds  is  so  high,  however,  notwithstand- 
ing the  Hmitations  upon  him,  and  the  opportunity  for  aggres- 
sive leadership  which  he  has  is  so  great,  that  the  Governor  who 
is  made  of  the  right  stuff,  can,  regardless  of  the  parly  conditions 
which  surrounded  his  election,  make  himself  a  conspicuous  power 
in  the  affairs  of  the  State,  and  not  infrequently  acquire  national 
fame  and  influence.  He  is  the  natural  Slate  leader  and  the 
general  public,  completely  reversing  the  popular  attitude  in  the 
early  years  of  the  Repubhc,  has  come  to  look  to  him  for  guid- 
ance in  State  affairs  in  much  the  same  way  as  it  looks  to  the 

'  In  Mississippi  an  unusual  system  of  indirect  election  prevails  for  the  selection 
of  all  State  officers.  Elections  are  helfl  in  the  several  counties  and  legislative  dis- 
tricts of  the  State  at  which  the  voters  express  their  preferences  anions  the  candidates 
for  the  various  ofTjces.  The  person  receivinR  the  highesl  number  of  votes  cast  in 
any  county  or  district,  for  any  ofTue,  "shall  be  holden  to  have  received  as  many 
votes  as  such  county  or  district  is  entitled  to  members  in  the  house  of  representa- 
tives, which  last  named  votes  are  hereby  desiRnateil  'electoral  votes.'  "  'I"he  can- 
didate who  receives  :i  majority  of  all  the  electoral  votes  of  the  State,  and  also  a 
majority  of  the  pojjiilar  vote,  is  declared  elected.  —  Mississippi  Constitution, 
Section  140. 


STATE  ADMINISTRATION  363 

President  in  national  affairs.  The  office  of  Governor  is  un- 
doubtedly growing  in  importance,  and,  taking  the  States  as  a 
whole,  its  occupants  are  measuring  up  to  higher  standards  of 
independence  and  leadership.  It  is  an  office  that  is  potentially 
great  and  that  calls  for  men  of  statesmanlike  qualities  and 
abihties.  As  in  the  case  of  the  presidency,  its  actual  influence 
at  any  particular  time  depends  largely  upon  the  character  and 
powers  of  the  man  who  holds  it. 

The  term  of  office  for  which  the  Governor  is  elected  is  fixed 
by  the  State  constitution.  As  in  the  case  of  members  of  the 
State  legislatures,  no  uniform  rule  is  observed.  In  twenty- 
three  States  the  term  is  two  years,  and  in  twenty-three,  it  is 
four  years.  One  State,  New  Jersey,  has  a  three-year  term,  and 
one,  Massachusetts,  elects  its  Governor  annually.  A  tendency 
has  been  apparent,  in  recent  years,  to  substitute  the  four-year 
for  the  two-year  term.  The  opinion  is  growing  that  it  is  in  the 
interest  of  popular  government,  as  well  as  of  more  efficient  ad- 
ministration, for  the  Governor  to  have  at  least  four  years  of 
service,  free  from  the  excitements  and  distractions  of  a  cam- 
paign for  reelection,  and  in  a  number  of  States  agitation  is 
under  way  looking  to  the  adoption  of  the  longer  term.  It 
requires  time  for  a  Governor  to  become  proficient  in  his  work 
and  the  two-year  term  is  not  long  enough  to  enable  him  to  do 
this  and  utilize  this  newly  acquired  proficiency  to  the  best 
advantage.  That  the  tendency  is  clearly  in  the  direction  of 
the  longer  term  is  indicated  by  the  fact  that  two  of  the  three 
States  last  admitted  to  the  Union,  Oklahoma  and  New  Mexico, 
provided  for  the  election  of  their  Governors  every  four  years. 

The  compensation  of  the  Governors  varies  greatly.  In 
some  States  the  amount  is  definitely  fixed  in  the  constitution, 
and  in  others  it  is  left  to  the  discretion  of  the  legislatures.  The 
salaries  range  from  $2500  to  $12,000.  Six  States  pay  their 
governors  $10,000  or  more,  and  thirty-two  pay  $5000  or  more. 
In  two  States  the  sum  is  $2500  and  in  four,  $3000. 

The  qualifications  of  Governors  are  determined  by  the  State 
constitutions.  An  age  limit  is  everywhere  prcscril)ed,  the 
usual  requirement  being  that  the  Governor  must  be  at  least 
thirty  years  of  age.  He  must  be  a  citizen  and  have  been  a 
resident  in  the  State  for  a  prescribed  number  of  years.  It  is 
quite  the  regular  rule  to  forl)id  the  Governor  to  hold  any  federal 


364  COMPARATIVE   FREE   GOVERNINIENT 

office  during  the  time  he  is  serving  as  Governor.  In  some 
States  he  is  made  inehgible  to  succeed  himself,  but  in  others 
no  Hmitation  is  prescribed  as  to  the  number  of  terms  he  may- 
serve.  The  two-term  custom,  however,  is  quite  generally  ob- 
served. In  a  few  States  it  is  prescribed  that  the  Governor 
shall  not  be  elected  to  the  United  States  Senate  during  his  term 
of  office. 

The  Governor  as  an  Executive.  —  The  powers  of  the 
Governors  of  the  several  States  are  similar  in  character,  though, 
as  a  matter  of  course,  they  differ  more  or  less  in  detail.  The 
Governor  is  generally  charged  by  the  State  constitution  with 
the  exercise  of  the  executive  power  of  the  State  and  is  made 
responsible  for  the  faithful  enforcement  of  the  laws.  He  thus 
becomes  the  State's  "  chief  executive."  It  is  to  be  noted,  how- 
ever, that  this  vesting  of  the  executive  power  in  the  Governor 
does  not  give  him  a  place  in  the  State  government  like  that 
which  the  President  has  in  the  Nation  as  a  result  of  a  similar 
grant  in  the  national  Constitution.  The  President  is  in  fact  the 
Nation's  chief  executive  and  is  responsible  for  the  national  ad- 
ministration. The  executive  departments  are  under  his  direct 
supervision  and  control,  and  their  heads  are  appointed  by  him 
and  may  be  removed  by  him  at  will.  But  in  none  of  the  States 
is  the  Governor  given  such  a  position  of  dominance  in  the 
State  administration.  There  are  in  each  State  executive  officers, 
chosen  by  popular  election,  who  are  in  charge  of  important  de- 
partments of  administration,  and  who  are  independent  of  the 
Governor.  Their  responsibility  is  to  the  electors  just  as  is  the 
Governor's.  Consequently  the  declaration  of  a  constitution 
that  the  "  supreme  executive  power  "  of  a  State  shall  be  vested 
in  the  Governor  is  not  to  l)e  understood  as  conferring  the  au- 
thority to  direct  all  of  the  State's  administrative  activities.  As 
remarked  previously,  the  State's  administrative  organization 
is  decentralized,  while  that  of  the  Nation  is  highly  centralized. 
The  Governor  is  thus  only  one  of  a  number  of  executive  officers 
in  the  State;  and  over  his  associates  he  has  very  Htlle,  if  any, 
control.  Certainly  as  long  as  these  officer;^,  to  whom  (ie(inite 
duties  have  been  assigned  by  the  constitution  or  by  law,  ob- 
serve the  requirements  set  for  them,  the  Governor  can  have 
nothing  to  say  concerning  the  manner  in  which  they  conduct 
their  offices.     However,  if  they  should  violate  the  laws  or  fail 


STATE  ADMINISTRATION  365 

to  enforce  those  for  which  they  are  responsible,  it  would  be 
the  duty  of  the  Governor,  under  the  constitutional  requirement, 
to  take  whatever  action  is  permitted  him  to  see  that  the  laws 
are  enforced  and  that  those  guilty  of  their  violation  are  punished. 
This  means,  usually,  that  he  may  start  legal  proceedings  against 
the  offending  officer.  In  some  instances  the  power  to  suspend 
an  ofl&cer  temporarily  is  conferred  on  the  Governor,  but  this  is 
by  no  means  common.  As  a  usual  thing,  he  is  dependent  upon 
court  processes.  It  is  clear,  therefore,  that  the  Governor,  as 
the  "  chief  executive  "  of  the  State,  holds  a  pecuHar  position 
and  that  his  relation  to  the  general  State  administration  is 
very  different  from  that  of  the  President  to  the  administration 
of  national  affairs. 

In  the  enforcement  of  laws  violated  by  private  individuals, 
the  Governor,  when  he  takes  the  initiative,  acts  by  ordering  a 
prosecution  in  the  courts  by  the  law  officers  of  the  State.  In 
cases  of  this  kind  resort  is  almost  always  had  to  court  pro- 
ceedings. It  sometimes  happens,  however,  when  riots  occur 
or  extreme  disorder  prevails,  that  martial  law  is  declared  by  the 
Governor,  and  the  miUtary  forces  of  the  State,  the  militia,  are 
called  out  to  enforce  obedience.  This  drastic  action  is  by  no 
means  a  frequent  occurrence,  but  occasionally  it  has  been  neces- 
sary. Usually,  when  it  has  been  taken,  the  necessity  for  it 
has  arisen  in  connection  with  the  violence  and  disorders  attend- 
ant upon  bitter,  long-continued  controversies  between  striking 
laborers  and  their  employers.  If  the  disorder  is  so  widespread 
and  of  such  a  character  that  the  Governor  feels  that  he  is  unable 
to  cope  with  it,  he  may  call  upon  the  President  for  the  assist- 
ance of  federal  troops.  Of  course  the  President  is  under  no 
obligation  to  grant  the  request,  if  he  thinks  that  the  Governor 
has  failed  to  use  all  the  power  at  his  command,  and  he  will 
assent  to  it  only  when  he  is  convinced  that  there  is  real  need  for 
federal  interference.  In  this  connection  it  is  to  be  noted,  as 
these  statements  imply,  that  the  Governor  is  the  head  of  the 
State  militia  except  when  it  is  in  the  service  of  the  United  States, 
when,  of  course,  it  becomes  a  part  of  the  United  States  army  and 
is  under  the  command  of  the  President. 

Another  significant  power,  possessed  by  the  Go\-crnor,  is 
that  of  granting  pardons,  reprieves,  and  commutations.  This 
power  is  related  to  his  executive  functions,  but  is  really  quasi- 


366  COMPARATIVE   FREE   GOVERNMENT 

judicial  in  character.  The  practices  of  the  States  in  this,  as  in 
the  exercise  of  so  many  other  powers,  are  by  no  means  uniform. 
In  some  States  the  Governor  alone  exercises  the  pardoning  power, 
and  in  others  he  shares  it  with  the  legislature  or  with  a  board  of 
pardons.  In  some  instances  a  board  of  parole  exists  with  power 
to  parole  prisoners  and  make  recommendations  to  the  Governor 
concerning  appUcations  for  pardon.  Sometimes  the  Governor  is 
bound  by  such  recommendations  and  sometimes  he  is  not. 
The  pardoning  power  may  not  be  used  in  impeachment  cases. 
The  granting  of  pardons,  reprieves,  and  commutations  is  a 
very  important  function  of  government  and  has  been  greatly 
abused  in  many  of  the  commonwealths.  It  affects  vitally  the 
administration  of  the  criminal  laws,  a  work  in  which  the  Ameri- 
can States  are  notably  weak,  and  is  central  in  the  great  problem 
of  prison  administration  and  reform  which  presses  for  solution 
in  all  of  the  States. 

Appointment  and  Removal  of  Officers.  —  A  part  of  the 
Governor's  work  as  an  executive  officer  is  the  making  of  ap- 
pointments to  office.  With  respect  to  this  the  practices  of  the 
States  difTer  greatly.  In  some  States  the  Governor's  power  of 
appointment  is  large  because,  either  by  constitutional  provision 
or  by  requirement  of  law,  he  is  charged  with  the  appointment 
of  many  important  officers.  In  other  States  this  power  is 
relatively  small  because  the  elective  principle  is  applied  to  all 
or  practically  all  important  positions.  The  present  tendency, 
as  shown  by  the  developments  of  recent  years,  is  clearly  in  the 
direction  of  a  larger  use  of  the  appointive  principle  and  a  re- 
duction in  the  number  of  elective  offices.  If  this  movement 
achieves  substantial  results,  the  Governor's  position  will  un- 
doubtedly become  one  of  far  greater  power,  inlluence,  and  re- 
sponsibility than  it  is  now  or  ever  has  been.  It  is  usually  the 
practice,  where  the  Governor  is  given  authority  to  make  ap- 
pointments, to  require  their  confirmation  by  the  upper  house 
of  the  legislature.  In  this  the  inlluence  of  the  national  practice 
is  clearly  discernible.  As  with  the  Presideni,  some  of  the 
Governor's  ajjpointing  power  comes  from  the  constitution,  and 
some  from  authorization  by  IJie  legislature.  In  the  latter  case, 
the  legislature  is  usually  free  to  require  conlirmation  or  not, 
just  as  it  pleases.  In  some  States,  indeed,  the  legislature  it- 
self   is    empowered    to  make  important   appointments.     In  a 


STATE  ADMINISTRATION  367 

few,  the  State  Treasurer,  who  is  commonly  looked  upon  as  one 
of  the  most  important  State  officers  and  one  whom  the  electors 
should  choose  directly,  is  appointed  by  the  legislature.  The 
regular  rule,  however,  is  to  give  the  appointing  power  to  the 
Governor,  in  the  case  of  heads  of  departments,  members  of 
State  boards  and  commissions,  and  judges  of  the  courts,  if  the 
appointive  method  is  employed.  The  appointment  of  deputies 
and  other  subordinate  officials  in  the  departments  is  usually 
left  to  the  department  heads.  To  some  extent,  in  some  States, 
civil  service  laws  are  in  force,  which  limit  the  appointing  power 
of  the  Governor  and  other  State  officers.  There  is  no  uniform- 
ity in  this  regard,  however,  and,  in  general,  the  civil  service 
requirements  of  the  States  are  meager  and  not  of  a  high  order. 
In  this  field  lies  one  of  the  great  opportunities  of  the  States 
for  notable  reform  and  progress. 

Consideration  of  the  appointing  power  suggests  the  power  of 
removal.  Here,  again,  the  position  of  the  Governor  is  very 
different  from  that  of  the  President.  In  the  case  of  the  Gov- 
ernor, there  seems  to  be  no  general  or  inherent  power  of  removal, 
such  as  is  recognized  as  belonging  to  the  President.  Whatever 
authority  he  has  of  this  nature  comes  to  him  from  specific 
authorization  by  the  State  constitution  or  by  legislative  enact- 
ments. As  would  naturally  be  expected,  this  authority  varies 
greatly  from  State  to  State.  Not  only  this,  but  a  number  of 
radically  different  methods  of  removal  are  employed  by  the 
States.  Professor  Beard  calls  attention  to  six  of  these,  three 
or  more  of  which  will  be  found  in  almost  any  commonwealth, 
and  remarks :  "  Not  only  do  we  discover  a  great  variety  of 
practices  among  the  several  commonwealths,  but  in  each  State 
we  find  different  methods  of  removal  applied  to  officers  of  equal 
rank  as  well  as  officers  of  different  grades."  ^ 

The  first  of  these  methods,  common  to  all  of  the  States,  is 
that  of  impeachment.  As  a  rule,  the  procedure  observed  is 
about  the  same  in  the  various  States  and  is  similar  to  that  which 
is  followed  by  the  houses  of  Congress  as  prescribed  by  the 
federal  Constitution.  The  indictment  or  impeachment  charge 
is  brought  by  the  lower  house  of  the  legislature  and  the  case  is 
tried  by  the  Senate.  In  some  instances  judges  of  the  highest 
State  court  sit  with  the  Senate.     This  is  the  case  in  New  York, 

*  Beard,  "  American  Government  and  Politics,''  New  and  Revised  Edition,  p.  508. 


368  COMPARATIVE  FREE   GOVERNMENT 

where  all  of  the  judges  of  the  Court  of  Appeals  participate  in  im- 
peachment trials.  One  State,  Nebraska,  imposes  the  duty 
of  hearing  impeachment  cases  exclusively  upon  the  judges 
of  the  Supreme  Court,  the  impeachment  being  made  by 
the  two  houses  of  the  legislature  in  joint  session.  No  uni- 
form rule  exists  among  the  States  as  to  what  officers  are 
subject  to  impeachment.  In  some,  all  civil  officers  may 
be  impeached,  while  in  others  the  impeachment  process  is 
limited  in  its  application.  The  offenses  which  may  cause  im- 
peachment are,  with  one  exception,  stated  in  the  constitutions. 
South  Carolina  gives  to  the  legislature  full  authority  to  deter- 
mine the  offenses  which  call  for  impeachment.  Among  the 
causes  of  impeachment,  in  addition  to  treason,  bribery,  crime, 
and  misdemeanor,  may  be  mentioned  the  following :  "  drunken- 
ness, malfeasance,  gross  immorality,  extortion,  neglect  of  duty, 
incompetency,  and  misconduct."  '  Conviction  on  an  impeach- 
ment charge  usually  involves  removal  from  office  and  disquali- 
fication from  holding  any  office  of  profit  or  trust  in  the  State, 
but  as  under  the  national  Constitution,  it  does  not  free  the 
offending  officer  from  arrest,  conviction,  and  punishment  under 
the  criminal  laws  of  the  State. 

The  other  methods  of  removal  are  by  the  legislature,  by  the 
Governor  and  the  Senate  acting  together,  by  the  Governor 
alone,  by  the  courts,  and  by  recall  by  the  electors.  These 
methods  are  not  employed  by  all  of  the  States,  of  course.  Re- 
moval by  the  Governor  and  Senate  is  quite  common.  Removal 
by  the  Governor  alone,  however,  is  not  a  common  practice,  al- 
though in  a  numljer  of  States  the  Governor  is  given  authority 
to  remove  officers  whom  he  appoints.  The  poj)ular  recall  is 
a  new  device,  first  ap[)lied  to  State  officers  in  1908  when  it  was 
made  a  part  of  the  Oregon  constitution.  It  involves  the  holding 
of  an  election,  upon  the  petition  of  a  designated  percentage  of 
the  voters,  to  determine  whether  or  not  the  officer  under  charge 
shall  continue  in  office  or  be  removed.  A  number  of  States  in 
recent  years  have  adopted  the  recall  and  given  it  state-wide 
application.  In  the  cities  governed  i)y  commissions  it  is  quite 
generally  provided  for.  . 

The  Governor  and  Legislation.  — The  Governor,  in  addition 
to  the  executive  and  (|uasi-ju(licial  functions  which  have  been 

•  Bcurd,  "  American  GovcriimciU  and  Polilics,"  New  and  Revised  Kdilion,  p.  509. 


STATE  ADMINISTRATION  369 

noted,  has  a  vital  relation  to  State  legislation.  In  general, 
this  relation  is  very  similar  to  that  which  the  President  has  to 
national  legislation.  While  the  principle  of  the  separation  of 
powers  is  fundamental  in  all  of  the  State  constitutions,  the 
Governor  is  everywhere  permitted  to  share  in  the  legislative 
function.  Some  of  his  power,  as  with  the  President,  is  constitu- 
tional in  its  origin  and  character  and  some  of  it  extra-constitu- 
tional. The  Governor,  like  the  President,  is  more  than  an 
executive  officer  under  the  constitution  and  the  nominal  head  of 
the  government  of  which  he  is  a  part ;  he  is  also  the  head  of  his 
party  and,  as  such,  has  an  important  work  to  do  in  the  formula- 
tion of  State  policies. 

Following  the  practice  in  the  Nation,  the  State  constitutions 
give  to  the  Governor  the  right  to  recommend  to  the  legislature  the 
enactment  of  laws  and  the  adoption  of  policies  which  he  deems 
wise.  He  does  this  through  messages,  either  sent  in  written 
form  to  be  read  to  the  two  houses  by  their  own  officers,  or  de- 
livered in  person  by  the  Governor.  At  the  beginning  of  each 
legislative  session,  he  addresses  the  legislature  in  one  or  the  other 
of  these  ways  and  calls  attention  to  the  new  laws,  or  the  modifica- 
tion of  existing  laws,  which  he  thinks  the  legislature  should  take 
under  consideration.  During  the  session,  also,  special  messages 
may  be  addressed  to  the  legislature  for  the  same  purpose.  It 
is  understood,  of  course,  that  the  legislature  is  not  bound  to 
act  upon  the  Governor's  recommendations.  It  is  free  to  do 
as  it  pleases,  just  as  Congress  may  do  whatever  it  wants  to  with 
the  suggestions  of  the  President.  But  the  Governor,  like  the 
President,  may  appeal  directly  to  the  people  through  speeches 
or  printed  articles  in  an  attempt  to  arouse  public  sentiment  in 
favor  of  the  policies  he  stands  for  and  thus  bring  public  pressure 
to  bear  upon  the  legislature.  Moreover,  the  Governor  is  given 
authority  to  call  the  legislature  in  extraordinary  session,  and  if 
it  fails  to  act  as  he  desires  at  the  regular  session,  he  may  thus 
force  it  to  approve  or  reject  the  measures  he  has  recommended 
to  it.  In  attempting  to  influence  the  legislature,  the  Governor 
has  the  same  weapons  to  employ  that  belong  to  the  President 
in  his  dealing  with  Congress,  though, -of  course,  their  effective- 
ness is  less  in  the  hands  of  the  former  than  in  the  hands  of  the 
latter.  Patronage  sometimes  plays  its  part ;  personal  per- 
suasion is  often  effective ;    the  influence  of  party  leaders  and 


370  COMPARATIVE   FREE   GOVERNMENT 

workers  is  sometimes  brought  to  bear.  But  the  great  weapon 
of  the  Governor  is  the  privilege  he  enjoys  of  appealing  directly 
to  the  people,  to  whom  he  is  alone  responsible,  and  of  explain- 
ing his  position  and  soliciting  their  approval.  Public  opinion, 
when  it  is  clear  and  unmistakable,  is  the  great,  irresistible  force 
in  politics. 

In  addition  to  his  right  to  recommend  laws,  the  Governor 
has  the  power  to  veto  acts  of  the  legislature  which  he  disap- 
proves. Only  one  State,  North  Carolina,  withholds  the  veto 
from  the  Governor.  The  constitutional  authorization  of  the 
veto  is  a  part  of  the  general  provision  requiring  that  all  bills 
must  be  submitted  to  the  Governor  for  his  signature.  The 
general  practice  is  similar  to  that  prescribed  in  the  federal  Con- 
stitution. The  Governor  is  given  a  definite  period  in  which  to 
consider  a  measure  submitted  to  him  by  the  legislature,  the  time 
varying  in  the  different  States  from  three  to  ten  days.  If  he 
signs  it,  the  legislative  process  is  completed,  and  the  law  goes 
into  effect  at  the  time  prescribed  by  the  constitution  or  by  the 
law  itself.  If  he  wishes  to  veto  the  measure,  he  returns  it  to 
the  branch  of  the  legislature  in  which  it  originated,  together  with 
a  statement  of  his  objections.  It  is  then  the  privilege  of  the 
legislature  to  pass  the  bill  over  the  Governor's  veto.  The  usual 
vote  required  for  this  is  two  thirds  in  each  house,  although  three 
States  provide  a  majority  of  three  fifths,  and  a  few  require  only 
a  majority  vote.  In  some  of  the  States  the  Governor  is  per- 
mitted to  veto  single  items  of  bills,  a  privilege  which  the  Pres- 
ident does  not  have.  More  than  half  of  the  States  give  this 
authority  to  the  Governor  in  connection  with  appropriation 
bills.  Ordinarily,  as  is  the  case  with  the  President,  the  veto  is 
an  effective  weapon  in  the  hands  of  the  Governor. 

Mention  has  been  made  of  the  fact  that  an  important  part  of 
the  Governor's  influence  upon  legislation  does  not  rest  upon 
formal  constitutional  provision,  but  is  due  to  his  position  as  a 
party  leader.  This  is  an  aspect  of  the  matter  which  should  not 
be  overlooked,  but  which  cannot  be  given  here  a  detailed  dis- 
cussion. The  Governor's  recommendations  to  the  legislature 
carry  weight  by  reason  of  his  party  leadershi]).  For  the  same 
reason  his  veto  is  difficult  to  overcome,  if  the  bill  in  C|uestion 
deals  with  mailers  thai  are  ihe  subjects  of  partisan  controversy. 
In  general,  it  maybe  said  up(jii  lliis  [mjIiiI,  that  the  Governor's 


STATE   ADMINISTRATION  37 1 

party  position  in  the  State  is  relatively  the  same  as  the  Presi- 
dent's position  in  the  Nation,  although  the  actual  influence  of 
the  Governor  by  no  means  measures  up  to  that  of  the  President. 
Each  has  power  in  his  own  field  because  of  his  relation  to  his 
party.  What  this  power  really  amounts  to  depends,  in  the 
case  of  the  Governor,  as  in  the  case  of  the  President,  upon  him- 
self, —  upon  his  character,  will,  capacity  for  leadership,  and 
conception  of  the  functions  of  the  office  he  holds.  He  can 
be  a  leader  in  legislation,  or  not,  just  as  he  chooses. 

The  Lieutenant  Governor.  —  Closely  related  to  the  office 
of  Governor,  is  that  of  Lieutenant  Governor,  although  the  latter 
is  not  an  administrative  office.  The  Lieutenant  Governor, 
usually  elected  by  popular  vote,  holds  in  the  State  relatively 
the  same  position  as  the  Vice  President  in  the  Nation.  By 
provision  of  the  State  constitution  he  succeeds  the  Governor  in 
case  of  the  latter's  death  or  disability  or  removal  from  office  by 
impeachment.  As  a  usual  thing,  the  Lieutenant  Governor  is 
the  presiding  officer  in  the  State  Senate  and,  under  constitutional 
authority,  casts  the  deciding  ballot  in  case  of  a  tie.  As  pre- 
viously noted,  the  Lieutenant  Governor  is  given  power  in  some 
of  the  States  to  appoint  the  Senate  committees.  Where  this 
is  done  he  is  an  important  factor  in  legislation,  differing  in  this 
respect  from  the  Vice  President.  A  majority  of  the  States  have 
a  Lieutenant  Governor. 

Independent  Executive  Officers.  —  Passing  from  a  considera- 
tion of  the  State's  "  chief  executive,"  the  Governor,  and  his 
legal  successor,  it  is  necessary  to  give  attention  to  other  ad- 
ministrative officers.  In  all  the  States  there  are  several  ex- 
ecutive officers  who  are  independent  of  one  another  and,  for 
the  most  part,  of  the  Governor  also.  Each  has  his  own  work 
to  do  by  authorization  of  the  constitution  or  the  statutes,  and 
is  responsible  to  the  people  of  the  States.  These  officers  are 
heads  of  departments,  and  as  a  rule  are  chosen  by  popular  vote 
for  definite  terms  of  office.  Their  terms  usually  coincide  with 
that  of  the  Governor.  They  are  almost  always  chosen  as 
party  men  and  as  a  rule  receive  compensation  as  fixed  by  the 
legislature.  At  least  five  of  these  officers  may  be  given  special 
mention. 

In  all  of  the  States  there  is  a  Treasurer  who  is  charged  with 
the  safe-keeping  of  all  moneys  which  come  into  the  State  treas- 


372  COMPAILVTIVE   FREE   GOVERNMENT 

urv  from  taxes,  fees,  rentals,  and  other  sources  of  income.  He 
is  placed  under  a  heavy  bond  for  the  faithful  discharge  of  his 
duties.  Money  may  be  paid  out  of  the  treasury  only  upon 
authorization  by  the  legislature  and  upon  proper  warrants 
issued  as  provided  by  law. 

All  the  States  have  an  ofhcer  called  Secretary  of  State  who 
performs  important  ministerial  duties.  He  is  the  custodian  of 
the  State  archives  and  keeper  of  the  State  seal ;  publishes  and 
distributes  the  laws  enacted  by  the  legislature ;  distributes 
public  documents  of  all  kinds ;  issues  election  notices  and  cer- 
tificates of  election  ;  compiles  and  publishes  election  returns ; 
usually  serves  as  ex  officio  member  of  various  State  boards; 
makes  annual  reports  of  the  work  of  his  department ;  receives 
reports  and  fees  from  various  officers,  and  performs  many 
other  miscellaneous  duties  imposed  by  law.  Frequently  he  is 
required  to  issue  certificates  of  incorporation  to  companies 
organizing  under  the  laws  of  the  State,  collect  the  incorpora- 
tion fees,  receive  the  annual  reports  of  corporations,  and  have 
general  supervision  over  the  enforcement  of  the  corporation 
laws.  Naturally  the  duties  of  the  Secretary  of  State  vary 
greatly,  in  detail,  from  State  to  State. 

Another  official  found  in  all  of  the  States  is  the  Attorney- 
General,  who  is  the  chief  law  officer.  In  general,  his  duties  are 
of  two  kinds.  He  prosecutes  cases  for  the  violation  of  State 
laws  and  defends  the  State  in  actions  brought  against  it ;  and 
he  acts  as  legal  adviser  to  State  officers  and  departments  when 
they  are  in  need  of  his  services.  Clearly  the  work  of  the  At- 
torney-General is  of  high  importance.  Upon  him  in  no  small 
degree  rests  the  responsibility  for  the  faithful  enforcement  of 
the  laws.  His  powers  differ  a  good  deal  in  the  several  States. 
In  some  he  has  close  relation  with  the  law  enforcement  officers 
of  the  local  governments  and  may  interfere  on  behalf  of  the 
State  if  they  fail  or  are  lax  in  the  enforcement  of  State  laws.  It 
may  be  said  that  the  function  of  the  Attorney-General  is  coming 
to  be  looked  upon  by  the  i)c<)i)le  with  increasing  concern  and 
general  improvement  in  the  work  of  his  office  may  confidently 
be  expected. 

In  most  of  the  States  there  is  an  officer  called  Auditor  or 
Comptroller,  the  former  being  the  more  common  name.  As 
the  name  suggests,  it   is  the  function  (;f  the  Auditor  to  audit 


STATE  ADMINISTRATION  373 

accounts  against  the  State  and  draw  warrants  on  the  treasury 
for  the  payment  of  money  authorized  by  law.  It  is  only  upon 
the  proper  warrant  from  the  Auditor  that  the  Treasurer  may 
pay  out  money  in  his  possession.  The  Auditor  is  an  important 
factor  in  the  management  of  the  fiscal  affairs  of  the  State.  In 
some  States  special  duties  are  imposed  upon  him  with  respect 
to  the  supervision  of  insurance  companies,  banks,  and  loan  and 
trust  companies.  He  is  everywhere  in  close  relation  with 
county  officials,  and,  like  other  State  officers,  is  frequently 
ex  officio  a  member  of  boards  and  commissions. 

The  fifth  officer  to  be  mentioned  especially  is  the  Superintend- 
ent of  Public  Instruction,  in  some  States  called  the  Commis- 
sioner of  Education.  This  officer  is  found  in  most  of  the 
States.  It  is  his  duty  to  administer  the  laws  of  the  State  re- 
lating to  education,  as  far  as  the  general  public  school  system  is 
concerned,  and  promote  the  educational  interests  of  the  State. 
A  phase  of  his  work  which  is  particularly  vital  is  that  in  con- 
nection with  the  development  and  management  of  the  rural 
schools,  one  of  the  big  and  fundamentally  important  problems 
in  America.  In  many  States,  the  Superintendent  of  Public 
Instruction  is  elected  by  popular  vote,  while  in  others  he  is  ap- 
pointed, usually  by  the  Governor. 

Besides  the  officers  mentioned  there  are  many  other  independ- 
ent executives,  with  widely  varying  duties,  to  be  found  in  the 
States.  The  work  of  the  State  governments  has  increased  enor- 
mously with  the  growth  of  population  and  the  rapid  develop- 
ment of  industry  and  commerce.  It  is  to  be  borne  in  mind  that 
America  practically  has  ceased  to  be  a  country  with  a  vast 
unclaimed  public  domain,  with  fertile  agricultural  lands  to  be 
had  at  very  low  prices,  and  has  entered  upon  the  industrial 
phase  of  her  development.  The  result  is  a  complexity  in  social, 
business,  and  political  relationships  which  was  entirely  lacking 
not  many  years  ago.  This  development  is  clearly  reflected  in 
the  great  increase  in  governmental  functions  both  in  States  and 
Nation.  Public  ofiices  have  multiplied  rapidly  in  recent  years. 
The  States  have  not  developed  along  identical  lines,  and  natu- 
rally there  is  great  diversity  as  to  the  character  and  purposes  of 
the  offices  which  have  been  established.  Furthermore,  there 
has  been  comparatively  little  thought  taken  in  any  State 
to    insure   a    systematic,   harmonious    administrative    system. 


374  COMPAPL\TIVE  FREE   GOVERN^IENT 

"  These  new  state  offices  have  been  created  one  after  the  other 
as  new  demands  have  been  made  upon  the  legislature ;  and  as 
the  federal  policy  of  classifying  and  subdividing  into  depart- 
mental hierarchies  has  not  been  adopted  by  our  common- 
wealths, the  result  has  been  the  creation  of  a  system  which  is 
the  very  apotheosis  of  chaos  and  irresponsibility."  ^ 

State  Boards  and  Conunissions. — One  aspect  of  this  develop- 
ment is  deserving  of  particular  emphasis,  for  it  represents  a 
noteworthy  tendency  in  American  politics  and  is  the  occasion 
of  a  good  deal  of  uneasiness  and  criticism  on  the  part  of  many 
persons  who  cling  tenaciously  to  the  traditional  ways  of  ad- 
ministering public  functions.  This  is  the  marked  and  rapid 
increase  in  the  number  of  boards  and  commissions  which  have 
been  charged  with  the  management  of  important,  difficult 
administrative  problems.  To  these  commissions  have  been 
given  great  executive  powers.  The  number  of  members  on 
the  commissions  varies  a  good  deal ;  sometimes  there  are  three, 
sometimes  five,  and  frequently  only  a  single  commissioner  is 
provided  for.  The  questions  placed  under  commission  control 
cover  a  wide  range.  Among  them  may  be  mentioned  the 
regulation  of  railways  and  other  public  utility  companies, 
both  State  and  local ;  tax  administration  ;  civil  service  ;  public 
health  ;  highways ;  minimum  wage  laws  ;  workingmen's  com- 
pensation laws ;  agriculture ;  management  of  the  State's 
charitable,  penal,  and  reformatory  institutions;  control  of  the 
State  institutions  for  higher  learning;  food  and  dairy  laws. 
Some  States  have  gone  much  farther  in  this  direction,  of  course, 
than  others,  but  in  all  the  States  the  movement  for  "  government 
by  commission,"  as  its  critics  have  called  it,  has  gained  great 
headway.  That  this  is  having  a  marked  influence  upon  the 
State  governments  cannot  be  questioned,  but  the  ultimate 
effect  must  be  left  for  time  to  reveal. 

In  explanation  of  the  commission  movement,  three  points 
may  be  suggested.  First,  legislating  in  minute  detail  upon 
complex  social  and  industrial  questions  is  a  difficult  thing, 
and  Stale  legislators,  often  unwilling  to  assume  the  full  burden 
of  legislation,  take  the  easier  course  of  creating  a  commission 
and  authorizing  it  to  work  out  a  system  of  control.     Though 

'  Beard,  "  American  Government  and  Politics,"  New  and  Revised  Edition,  p. 
SOI. 


STATE  ADMINISTRATION  375 

the  work  of  the  commission  is  really  executive  in  nature,  this 
is  really  delegating  to  the  commission  a  task  which,  according 
to  the  traditional  American  practice,  the  legislature  itself  should 
perform.  Second,  it  is  often  impossible  for  the  legislature  to 
provide  in  precise  terms  for  all  phases  of  the  work  which  must  be 
done.  A  commission  is  created,  therefore,  and  given  certain  dis- 
cretionary powers  which  will  enable  it  to  fit  the  general  legislative 
requirements  to  the  needs  of  the  time.  Third,  there  are  un- 
questionably developing  in  America  a  demand  for  expert  ad- 
ministration and  a  belief  that  many  of  the  great  problems  of 
the  day  cannot  be  solved  by  the  direct  act  of  the  legislature.  It 
is  held  that  the  legislature  adequately  discharges  its  function 
when,  in  general  terms,  it  expresses  its  will  and  sets  up  reason- 
able requirements,  leaving  to  administrative  ofi&cers  the  task  of 
ascertaining  in  detail  what  the  legislative  will  is.  The  practical 
appUcation  of  this  will  is  not  legislative,  but  executive  in  char- 
acter, and  in  the  hands  of  trained  officers  assures  effective  exe- 
cution of  public  policies.  There  is  clearly  a  disposition  on  the 
part  of  many  Americans  to  attempt  to  graft  on  the  t)^ical 
Anglo-Saxon  practice  of  governing  through  detailed  legislation 
some  of  the  administrative  features  of  governmental  organiza- 
tion in  the  Roman  Law  countries  where  legislation  is  in  general 
terms  and  executive  authority  is  large.  The  administrative 
achievements  of  Germany,  in  particular,  have  had  a  very  posi- 
tive influence  upon  some  of  the  American  States.  Wisconsin 
may  be  cited  as  an  example.  In  that  State,  administration 
through  commissions  exercising  large  discretionary  powers, 
has  reached  perhaps  its  highest  development  in  America. 

As  stated,  the  commission  idea  has  been  subjected  to  a  good 
deal  of  hostile  criticism ;  but  with  the  merit  of  this  criticism 
the  discussion  here  is  not  concerned.  It  is  sufficient  to  call 
attention  to  the  development  that  has  occurred  and  to  indicate 
its  significance  in  relation  to  traditional  American  methods  of 
administration.  One  fact,  in  addition  to  what  has  been  said, 
however,  should  be  noted ;  that  the  method  of  administrative 
control  through  commissions  has  become  firmly  established  in 
national  affairs.  Its  use  is  not  confined  to  the  States.  As 
evidence  of  this,  it  is  only  necessary  to  mention  the  Interstate 
Commerce  Commission,  with  its  vast  power  over  the  manage- 
ment, service,   and    charges   of    railways,    the    Federal   Trade 


376  COMPAIL\TIVE  FREE  GOVERNMENT 

Commission,  and  the  Civil  Service  Commission.  In  Nation, 
as  well  as  in  States,  the  idea  of  expert  administration  is  gaining 
recognition. 

Movements  for  Administrative  Reorganization.  —  From  the 
review  of  the  executive  organization  in  the  States  which  has 
been  given,  it  is  plain  that  administrative  functions  are  per- 
formed under  conditions  of  chaos  and  irresponsibility  which 
make  real  efficiency  impossible.  This  fact  has  come  to  have 
general  recognition.  As  a  natural  consequence,  a  strong  de- 
mand has  developed  in  a  number  of  States  for  thoroughgoing 
administrative  reorganization,  in  the  interest  of  economy, 
efficiency,  and  genuine  democracy.  This  has  led  to  the  con- 
sideration, both  official  and  unofficial,  of  a  number  of  proposed 
schemes  of  reform.  Space  is  lacking  for  a  detailed  discussion 
of  these.  One  feature,  however,  which  is  fundamental  in  all  of 
them,  is  the  centralization  of  executive  power  and  the  definite 
fixing  of  responsibility  for  its  exercise.  This  involves,  of  course, 
systematic  regrouping  and  coordination  of  executive  depart- 
ments and  offices.  The  purpose,  in  general,  is  to  substitute 
an  executive  organization  similar  to  that  of  the  national  govern- 
ment, in  which  the  President  is  directly,  definitely  responsible  for 
the  conduct  of  the  administrative  departments,  for  the  loose, 
decentraUzed,  irresponsible  system  which  prevails  in  the  States. 
Readjustment  according  to  a  uniform  plan  is  hardly  to  be  ex- 
pected, but  the  tendency  as  revealed  in  the  reorganization  plans 
proposed  is  clearly  toward  some  arrangement  modeled  upon 
the  national  executive.  The  beUef  is  coming  to  be  widely 
held  that  there  should  be  a  marked  reduction  in  the  number  of 
elective  State  offices  and  a  corresponcHng  extension  of  the 
Governor's  appointing  power.  Heretofore,  dilTusion  of  power 
has  characterized  the  State  governments,  the  opinion  prevail- 
ing that  only  with  a  decentralized  system,  in  which  the  offices 
were  elective,  couki  jxjpular  control  be  made  effective.  But 
this  opinion  is  yielding  and  the  j)C()ple  of  the  States  are  coming 
to  see  that  a  multiplicity  of  elective  offices  is  not  essential  to 
democracy,  and  that  a  centralization  of  executive  ix)wer  is  not 
opposed  to  the  spirit  of  free  government. 

Sjx-cial  emi)hasis  is  to  be  placed  upon  this  need  for  adminis- 
trative reform.  In  all  nations  the  great  bulk  of  the  work  of 
government  is  administrative  in  character ;    yet  in  the  United 


STATE   ADMINISTRATION 


377 


States  administration  has  been  notably,  and  at  times  noto- 
riously, weak.  This  is  particularly  true  of  the  State  and  local 
governments;  but  the  national  government  as  well  has,  at 
times,  been  conspicuous  for  its  administrative  failures.  These 
failures,  in  State  and  Nation,  have  been  exceedingly  costly,  not 
only  in  a  financial  sense,  but  also  from  the  standpoint  of  popular 
government.  The  people  of  America  are  becoming  increas- 
ingly insistent  that  government  in  all  of  its  aspects  shall  be 
thoroughly  democratized,  but  as  yet,  generally  speaking,  they 
have  failed  to  comprehend  the  supreme  importance  of  adminis- 
tration and  its  vital  relation  to  democracy.  If  democracy,  if 
true  free  government,  is  to  succeed,  efficiency  in  all  of  the  pro- 
cesses of  government  must  be  attained.  In  the  United  States 
pubhc  attention  has  usually  been  centered  upon  the  legislative 
function,  the  determination  of  pubhc  policies,  and  compara- 
tively little  thought  has  been  given  to  the  administrative  func- 
tion, the  machinery  and  methods  by  which  the  pohcies  de- 
termined upon  are  actually  carried  into  effect.  Yet  public 
policies,  however  wise  in  character,  will  prove  disappointing,  to 
say  the  least,  if  they  are  carelessly,  inefficiently  administered. 

It  is  of  fundamental  importance  that  the  people  of  the  United 
States  awaken  to  a  realization  of  this  fact,  and  set  to  work  to 
develop  an  administrative  system  that  will  insure  the  effective 
execution  of  the  pubhc  will.  This  must  be  done,  indeed,  if  the 
government  is  to  be  genuinely  popular  and  the  experience  of 
the  United  States  in  solving  the  problems  of  free  government  is 
to  count  for  what  it  should  in  the  promotion  of  world  democracy. 

In  the  case  of  the  States,  what  the  ultimate  outcome  will  be 
of  the  movement  for  the  reorganization  of  their  governments 
cannot  be  foretold.  It  seems  certain  that  important  changes 
will  be  made.  But,  whatever  plan  may  be  adopted,  it  may  be 
expected  that  there  will  be  some  centralization  of  executive 
power  and  a  more  rational  coordination  of  administrative  de- 
partments.    Necessity  compels  readjustment  of  this  character. 

REFERENCES 

Beard.     American  Government  and  Politics,  Edition  1914,  Chap.  XXIV. 
Bryce.     The  American  CommomccaltJi,  Kdition  igio.  Vol.  I,  Ciiaps.  XLI, 

XLIII,  XLIV,  XLV. 
Dealey.     Grou'lli  of  American  State  Constitutions,  Chaps.  XIII,  XXII. 


378  COMPARATIVE   FREE   GOVERNMENT 

FiNLEY  and  Santderson.     The  Avicrican  Executive  and  Executive  Methods, 

Chaps.  I  to  XIV  inclusive. 
GooDNOW.     The  Principles  of  the  Administrative  Law  of  the  United  States, 

pp.  94-109. 
McCarthy.     The  Wisco?isin  Idea. 

Reinsch.     Readings  on  American  State  Government,  Chaps.  I,  V. 
YotJNG.     The  New  American  Government  and  its  Work,  Chaps.    XVII  to 

XXII,  inclusive. 


CHAPTER   XXIX 

The  State  Judiciary 

The  judicial  power  of  the  States,  like  the  legislative  and  the 
executive,  is  an  original  or  inherent  power  of  government.  It 
does  not  belong  to  the  States  by  reason  of  any  constitutional 
provision,  and  is  not  limited  to  specific  questions  or  to  contro- 
versies involving  particular  classes  of  persons.  Because  of  this 
the  State  courts  differ  fundamentally  from  the  federal  courts 
with  respect  to  jurisdiction.  The  latter  exercise  delegated 
authority ;  their  powers  are  limited  to  certain  kinds  of  cases 
enumerated  in  the  federal  Constitution.  But  the  courts  of  the 
States  are  courts  of  general  jurisdiction.  They  may  hear  any 
kind  of  case,  except  as  limitations  are  imposed  upon  them  by 
authority  of  the  Constitution.  Thus  their  field  of  action  is 
very  large.  It  is  in  connection  with  them  that  the  citizen  most 
frequently  comes  in  contact  with  judicial  processes,  and  through 
their  decisions  that  his  private  rights  and  obligations  most  often 
receive  judicial  recognition  and  enforcement.  This  makes  the 
State  judiciary  an  institution  which  is  of  high  concern  to  every 
person  within  the  State's  control. 

It  is  to  be  borne  in  mind,  in  thinking  of  the  work  of  the 
State  courts,  that  the  ordinary  field  of  private  law  for  the  most 
part  lies  within  the  powers  of  the  States.  The  rights  of  person, 
property  rights,  domestic  relations,  business  relations  of  all 
kinds,  the  definition  and  punishment  of  crimes,  are  all  within 
the  State's  control,  and  may  be  regulated  as  the  State  legisla- 
ture sees  fit,  except  as  restrictions  are  imposed  on  the  legisla- 
tive authority  by  the  State  constitution.  The  volume  of  law 
which  is  administered  by  the  State  courts  is  naturally  very 
large.  This  has  increased  enormously  in  recent  years,  under 
the  pressure  of  a  rapidly  changing,  developing  social  and  indus- 
trial life.  The  larger  the  number  and  the  greater  the  complexity 
of  the  laws,  the  greater  is  the  work  of  the  courts  and  the  more 

379 


380  COMPARATIVE  FREE   GOVERNMENT 

vital  is  the  judicial  function  in  the  promotion  of  the  public 
welfare  and  the  advancement  of  social  progress.  This  is  the  case 
in  all  political  societies,  but  especially  so  in  America  where  the 
courts  exercise  the  right  to  nullify  legislative  acts  on  constitu- 
tional grounds.  Because  of  this  power  the  courts  have  direct, 
positive  influence  upon  public  policies.  Therefore  the  problem 
of  court  organization  and  methods  and  the  attainment  of  judicial 
efficiency  become  matters  of  supreme  consequence.  If  the 
States  are  to  perform  well  the  parts  they  must  play  in  the 
evolution  of  the  American  democracy,  the  administration  of 
justice  by  the  courts  must  be  well  performed.  For  good  or  for 
ill,  the  American  system  gives  to  the  judiciary  a  central  place 
in  the  governmental  organization.  This  is  no  less  true  of  the 
States  than  of  the  Nation.  It  is  therefore  a  necessity  on  the 
part  of  the  States  to  develop  a  judicial  establishment  that  will 
meet  the  peculiar  needs  of  a  politically  virile,  active,  democratic 
people  who,  by  the  nature  of  the  government  which  has  been 
developed,  are  dependent  upon  the  courts  to  a  degree  unknown 
in  other  countries.  That  the  State  judiciary,  on  the  average, 
has  satisfactorily  met  this  requirement,  few  will  assert.  It  is 
a  fact  not  to  be  disputed  by  any  one  conversant  with  American 
politics  that  there  is  urgent  need  for  radical  changes  in  the 
organization  and  methods  of  the  judiciary  in  most  of  the  States. 
It  may  be  said  that  this  is  one  of  the  problems  of  fundamental 
importance  now  pressing  for  solution.  Indeed,  it  may  be 
doubted  whether  there  is  any  other  question  before  the  people 
of  America  which  is  so  supremely  important  as  this.  To  its 
solution  thoughtful,  discerning  minds  arc  turning  with  increas- 
ing interest  and  growing  ajjpreciation  of  its  elemental  character. 
The  State  Judicial  Systems.  —  The  judicial  systems  of  the 
se\'eral  States  arc  (lidicult  to  describe  in  general  terms  because 
of  the  many  variations  in  organization  and  powers,  as  well  as 
in  the  nomenclature  applied  to  the  courts.  With  the  courts, 
as  with  all  their  other  institutions,  the  States  have  been  free 
to  do  as  they  i)lcascd,  and  although  a  certain  degree  of  uni- 
formity exists,  the  dilTerences  are  so  numerous  and  in  some 
instances  so  striking  that  a  large  amount  of  detail  is  necessary 
for  a  comprehensive  treatment.  This,  however,  is  impossible 
in  this  i)lace  and  only  certain  general  features  of  the  State 
judiciary  may  be  commented  upon. 


THE   STATE  JUDICIARY  381 

There  are  at  least  three  parts  to  the  judicial  organization  in 
all  the  States.  These  are  the  small  local  courts,  with  limited 
jurisdiction  ;  the  highest  court  of  appeal,  the  head  of  the  judicial 
system ;  and  certain  intermediate  courts  with  general  original 
jurisdiction  and  appellate  powers  over  cases  which  are  appeal- 
able from  the  local  courts.  The  main  outline  of  this  system  is 
always  provided  for  in  the  State  constitution. 

In  most  of  the  States  the  highest  court  is  called  the  Supreme 
Court,  although  in  some  instances  other  names  are  used  such  as 
Court  of  Appeals,  and  Court  of  Errors  and  Appeals.  Its  work 
is  appellate  and  its  decisions,  of  course,  are  binding  upon  the 
lower  courts.  For  the  most  part  it  passes  upon  questions  of 
law  and  not  of  fact.  It  is  composed  of  a  number  of  judges,  say 
seven  or  nine,  the  number  varying  in  different  States.  The  size 
of  the  court,  as  also  the  question  of  compensation,  is  usually 
left  to  the  discretion  of  the  legislature.  The  State  Supreme 
Court  has  in  the  State  system  relatively  the  same  position  as 
that  held  by  the  Supreme  Court  of  the  United  States  in  the 
federal  system.  One  of  its  important  powers  is  to  pass  upon 
the  constitutionality  of  State  laws. 

The  court  at  the  bottom  of  the  State  system  is  the  Justice  of 
the  Peace  court,  which  has  jurisdiction  over  petty  offenses  and 
civil  cases  which  involve  only  small  sums.  Its  powers  and  pro- 
cedure are  fixed  by  statute.  In  some  instances,  in  the  larger 
cities  there  are  two  sets  of  these  courts,  one  for  hearing  criminal 
cases  and  the  other  civil  cases.  These  Justice  courts  are  no- 
tably faulty  and  inefficient  in  their  work.  As  a  usual  thing 
special  knowledge  of  the  law  is  not  required  of  the  justices  in 
charge. 

The  intermediate  courts  vary  a  good  deal  in  organization 
and  powers.  Two  kinds  of  courts  in  this  group  arc  to  be  noted. 
One  is  the  County  Court  which  is  to  be  found  in  many  of  the 
States.  Its  jurisdiction  is  limited,  though  much  larger  than 
that  of  the  Justice  courts.  It  may  hear  a  good  many  civil 
cases  involving  fairly  large  sums,  though  the  limit  varies  greatly 
in  dififerent  States,  and  also  has  jurisdiction  in  most  criminal 
cases  which  arise  in  the  county.  Ordinarily  it  passes  upon 
appeals  from  the  Justices  of  the  Peace.  In  some  of  the  States, 
furthermore,  certain  administrative  duties  are  imposed  on  it 
by  law.     In  two  States,  West  Virginia  and  Missouri,  the  County 


382  COMPARATIVE   FREE   GOVERNMENT 

Court  is  really  not  a  court  at  all,  having  only  administrative 
functions  to  discharge.  In  a  few  States  this  court  has  probate 
jurisdiction  and  certain  administrative  functions,  but  no  juris- 
diction in  civil  and  criminal  cases. ^  These  courts  are  sometimes 
known  as  District  Courts  or  Courts  of  Common  Pleas. 

In  a  good  many  of  the  States  there  are  courts  above  the 
County  Courts,  but  inferior  to  the  Supreme  Court.  These 
bear  different  names,  such  as  District,  Superior,  or  Circuit 
Courts.  Their  powers  are  larger  than  those  of  the  County 
Courts,  involving  original  jurisdiction  in  both  civil  and  criminal 
cases.  It  is  customary  to  allow  these  courts  to  pass  final  judg- 
ment in  cases  in  which  the  sum  involved  is  not  in  excess  of  a 
fixed  amount,  the  latter  varying  from  State  to  State.  When 
appeals  arc  permitted,  they  are  taken  to  the  Supreme  Court. 

In  some  States  the  distinct  County  Courts  do  not  exist  and 
the  District  or  Circuit  Court  is  the  only  one  intermediate 
between  the  Supreme  Court  and  the  Justices  of  the  Peace.  A 
number  of  counties  are  grouped  together  to  form  the  district 
or  circuit.  The  judges,  of  whom  there  may  be  several,  go 
from  county  to  county  within  their  district  and  hold  court  at 
stated  times.  Though  the  judges  are  from  a  district  larger 
than  a  county,  this  court  in  effect  is  a  real  county  court.  The 
cases  tried  in  any  particular  county,  except  when  there  has 
been  a  change  of  venue,  are  those  which  arise  only  in  that 
county.  The  records  of  the  cases  are  kept  at  the  county  seat. 
The  clerks,  sheriffs,  and  prosecuting  officers  are  county  officials. 
The  jurors,  both  grand  and  petit,  are  residents  of  the  county. 
Thus  essentially  the  court  is  a  county  court,  though  bearing 
another  name. 

There  are  in  some  States,  in  addition  to  those  of  the  regular 
hierarchy,  a  number  of  special  courts  whose  duty  it  is  to  look 
after  jmrticular  kinds  of  questions  and  cases.  Such  are  the 
probate  or  surrogates'  courts  for  the  settlemeiil  of  estates; 
juvenile  courts  to  [)ass  upon  the  delinquencies  of  children ; 
courts  of  claims ;  chancery  or  equity  courts ;  and  special  mu- 
nicipal courts  in  the  larger  cities.  Except  as  provided  in  the 
State  constitution,  the  judicial  organization  is  subject  to  change 
or  extension  at  the  discretion  of  the  legislature.  New  courts 
are  established  when  there  is  need. 

'  Fairlic,  "  Local  Government  in  Counties,  Towns,  and  Villages,"  p.  98. 


THE  STATE  JUDICIARY  383 

Selection  and  Compensation  of  Judges.  —  In  the  selection  of 
the  judges  various  methods  are  employed  in  the  different  States. 
The  most  common  is  that  of  election  by  popular  vote,  usually 
for  short  terms  of  service.  This  applies  to  Supreme  Court 
judges  as  well  as  to  judges  of  the  lower  courts,  although  the 
members  of  the  high  court  usually  serve  longer  terms  than  do 
the  lower  judges.  Where  popular  election  has  prevailed,  it  has 
been  customary  for  the  political  parties  to  put  up  candidates 
for  judicial  positions  just  as  for  other  public  offices.  Sentiment 
is  tending  away  from  partisan  judicial  elections,  however,  and 
in  some  States  attempts  have  been  made  by  law  to  insure  non- 
partisan elections.  Many  serious  objections  are  made  to  popu- 
lar election  of  judges,  particularly  to  partisan  popular  election, 
combined  with  short  terms.  Bryce's  expression  upon  this  is  to 
the  point,  and  represents  the  view  of  many  Americans.  "  Popu- 
lar elections  throw  the  choice  into  the  hands  of  political  parties, 
that  is  to  say,  of  knots  of  wirepullers  inclined  to  use  every 
office  as  a  means  of  rewarding  political  services,  and  garrisoning 
with  grateful  partisans  posts  which  may  conceivably  become  of 
political  importance.  In  some  few  States,  judges  have  from 
time  to  time  become  accomplices  in  election  frauds,  tools  in  the 
hands  of  unscrupulous  bosses.  Injunctions  granted  by  them 
were  moves  in  the  party  game.  Now,  short  terms,  though  they 
afford  useful  opportunities  of  getting  rid  of  a  man  who  has 
proved  a  failure,  yet  has  done  no  act  justifying  an  address  for 
his  removal,  sap  the  conscience  of  the  judge,  for  they  oblige 
him  to  remember  and  keep  on  good  terms  with  those  who  have 
made  him  what  he  is,  and  in  whose  hands  his  fortunes  lie.  They 
induce  timidity,  they  discourage  independence."  ^ 

Another  method  of  selection  is  appointment  by  the  legisla- 
ture. This  is  used  in  four  States,  two  in  New  England,  —  Ver- 
mont and  Rhode  Island,  and  two  in  the  South  —  Virginia  and 
South  Carolina.  Election  by  the  legislature  does  not  meet 
with  much  approval ;  in  fact,  it  is  generally  condemned.  The 
legislatures  are  made  up  of  party  men  and  election  by  them  is 
likely  to  be  quite  as  partisan  as  popular  election.  The  stand- 
ard of  political  morality  in  the  State  legislatures  is  not  always 
very  high  and  the  log-rolling  methods  so  commonly  employed 
are  particularly  objectionable  in  the  appointment  of  judges. 

'Bryce,  "The  American  CDinmonwealth,"  New  and  Revised  Edition,  Vol.  I,  p.  512. 


384  COMPARATIVE   FREE   GOVERNMENT 

The  third  method  of  selecting  judges  is  that  of  appointment 
by  the  Governor,  subject  to  confirmation  by  the  Governor's 
Council  *  or  by  one  or  both  of  the  houses  of  the  legislature.  Seven 
States,  including  Massachusetts  whose  judiciary  has  always 
ranked  high,  employ  this  method.  In  two  of  these,  Massachu- 
setts and  New  Hampshire,  the  appointment  is  for  life.  This  is 
true,  also,  of  Rhode  Island,  in  which  the  judges  are  appointed 
by  the  legislature.  In  all  of  the  other  States  the  election  or 
appointment  is  for  a  definite  term,  the  length  of  which  varies 
from  two  years  in  Vermont  to  twenty-one  years  in  Pennsylvania 
for  members  of  the  Supreme  Court.  A  six-year  term  is  pro- 
vided in  some  States,  and  in  others  one  of  twelve  years. 

With  regard  to  the  manner  of  selecting  judges  and  the  length 
of  their  terms,  it  is  difhcult,  indeed  impossible,  to  forecast  what 
the  years  will  develop.  Dissatisfaction  with  popular  election 
is  unmistakable  and  is  undoubtedly  growing ;  but  this  practice 
is  deeply  rooted,  and  a  vast  amount  of  prejudice  exists  against 
entrusting  the  appointment  of  judges  to  the  Governor,  even 
though  his  action  must  be  approved  by  the  legislature  or  by 
one  of  its  houses.  The  power  of  the  courts  to  nullify  legislative 
acts  is  looked  upon  as  a  political  power  of  the  utmost  impor- 
tance, and  the  opinion  prevails  that  the  judges  who  exercise  it 
should  be  directly  responsible  to  the  people.  There  is  some 
indication,  however,  that  sentiment  is  slowly  developing  in  favor 
of  the  appointive  plan,  particularly  in  connection  with  the 
higher  judgeships.  The  general  success  of  the  federal  courts, 
whose  judges  are  appointed  under  life  tenure,  has  had  its  effect 
upon  popular  opinion.  What  is  safe  and  satisfactory  for  the 
Nation  should  be  equally  so  for  the  States.  The  right  to  elect 
the  local  judges  is  everywhere  jealously  guarded  and  there 
is  little  to  suggest  any  marked  departure  from  the  method 
in  use. 

The  compensation  of  judges  is  low,  much  lower  than  that 
given  judges  in  England  and  other  European  countries.  The 
highest  salary  i)aid  to  any  of  the  State  judges  is  $17,500,  the 
compensation  received  by  Supreme  Court  justices  in  certain 
districts  in  the  State  of  New  \\)rk.  The  chief  justice  of  the 
New  York  Court  of  Appeals,  the  highest  court   in  that  State, 

'  '1  he  (iovernor's  ('(nitKil,  lommon  in  the  early  life  of  the  Stales,  is  retained  l)y 
only  three  of  the  Commonwealths       Massachusetts,  Maine,  and  North  Carolina. 


THE   STATE  JUDICLARY  385 

however,  receives  only  $14,200  a  year,  and  the  associate  judges 
$13,700.  In  Vermont  members  of  the  Supreme  Court  receive 
only  $2500.  This  is  the  lowest  salary  paid  in  any  State  to  judges 
of  the  highest  court.  Salaries  of  from  $5000  to  $6000  are 
found  in  many  States  and  are  about  the  average.  Of  course 
judges  of  the  lower  courts  receive,  as  a  rule,  a  proportionately 
lower  compensation.  The  general  effect  of  the  low  salaries  is 
obvious.  The  strongest,  most  capable  lawyers  are  not  drawn 
to  service  on  the  bench.  An  attorney  with  an  income  from  five 
to  ten  times  as  large  as  the  salaries  of  the  judges  before  whom 
he  practices  ordinarily  is  not  inclined  to  seek  judicial  honors. 
Yet  the  courts  should  command  the  highest  talent  if  their  work 
is  to  be  of  a  high  order. 

Jurisdiction  of  State  Courts.  —  As  observed  in  the  opening 
paragraph  of  this  chapter  the  State  courts  have  a  general  juris- 
diction ;  they  are  not  confined  by  constitutional  provision  to  a 
limited  field  of  litigation.  The  significance  of  this  is  clear,  but 
it  becomes  all  the  greater  when  it  is  recalled  that  the  judgments 
of  the  State  courts  are  final  in  all  matters  that  lie  within  the 
control  of  the  States.  Their  decisions  are  not  subject  to  review 
by  the  federal  courts,  unless  rights  are  claimed  under  federal 
law  or  the  federal  Constitution.  In  that  case,  of  course,  if  the 
alleged  rights  are  denied,  the  federal  courts  themselves  must 
determine  whether  the  question  at  issue  comes  within  the 
authority  of  the  States  or  that  of  the  Nation.  The  Nation's 
supremacy  in  its  own  sphere  must  be  maintained  by  its  own 
agents,  if  its  authority  is  challenged. 

The  bulk  of  the  work  falling  upon  the  State  courts  arises  out 
of  litigation  involving  the  State's  own  laws.  In  the  application 
of  these  the  court  of  last  resort  in  the  State  gives  the  final, 
authoritative  interpretation,  if  there  is  no  conflict  with  federal 
authority.  But  the  State  courts  are  not  confined  to  the  appli- 
cation of  State  laws ;  frequently  they  are  called  upon  to  adminis- 
ter federal  laws.  The  federal  Constitution,  statutes,  and 
treaties  are,  by  the  terms  of  the  Constitution  itself,  the  supreme 
law  of  the  land,  and  are  as  much  binding  upon  the  State  courts 
as  upon  the  federal  judiciary.  It  is  the  duty  of  the  State  courts 
to  apply  these  federal  laws,  therefore,  if  it  is  necessary  to  do  so 
to  settle  cases  before  them.  It  is  only  in  case  the  rights  asserted 
under  federal  laws  are  denied  that  the  national  authority  con- 

2C 


386  COMPAIL\TIVE  FREE  GOVERNMENT 

cerns  itself  in  the  matter.  The  Nation  cannot  permit  its  laws 
to  be  nullified  by  the  States. 

Under  authority  of  an  act  of  Congress  a  suit  may  be  removed 
from  a  State  court  to  a  federal  court  if  it  is  of  such  character 
that  it  might  have  been  brought  in  the  federal  court  in  the  first 
place.  If  the  State  court  should  refuse  to  grant  the  transfer 
when  asked,  and  satisfactory  showing  is  made,  the  federal  court 
of  proper  jurisdiction  may  itself  order  the  removal,  if  the  appli- 
cation has  been  made  according  to  the  method  prescribed  by 
law.  As  stated  in  the  discussion  of  the  federal  courts,  their 
jurisdiction  in  the  cases  recognized  by  the  Constitution  as  lying 
within  their  field  is  not  exclusive  unless  Congress  makes  it  so 
by  law.  That  is,  if  Congress  permits,  the  State  courts  may 
exercise  a  concurrent  jurisdiction.  This  has  been  authorized 
in  a  good  many  instances,  but,  as  observed,  removal  of  such 
cases  from  the  control  of  the  State  courts  is  provided  for  if  this 
seems  necessary  to  protect  the  federal  authority.  Discussion 
of  the  technical  procedure  by  which  this  is  done  is  aside  from 
the  present  purpose  ;  all  that  is  necessary  here  is  to  make  plain 
the  possibility  of  removal. 

Character  of  State  Law.  —  As  remarked  above,  the  chief  part 
of  the  State  judiciary's  work  is  administering  the  State's  own 
laws.  These  arc  exceedingly  numerous  and  give  occasion  for  a 
huge  volume  of  litigation.  A  word  concerning  their  general 
character  is  desirable. 

Two  kinds  or  bodies  of  law  prevail  in  the  States.  These  are 
the  Common  Law  and  the  statutory  law.  Statutes,  of  course, 
are  now  the  chief  source  of  law.  The  Common  Law  was  trans- 
planted to  America  from  England  by  the  early  colonists  and 
made  the  basis  of  American  jurisprudence.  Its  influence  upon 
American  development,  as  ujion  that  of  England,  has  been  pro- 
found. All  of  the  States  except  one  have  the  Common  Law  in 
force  to  a  greater  or  less  extent.  Louisiana,  the  exception,  has 
the  Roman  Law  system,  based  on  the  Code  Napoleon  ' ;  but 
even  that  State  has,  by  statute,  adopted  the  Common  Law  of 
crimes.  In  the  Xation  the  Common  Law  does  not  i)revail,  the 
federal  courts  administering  it,  when  occasion  demands,  only 
as  a  part  of  State  law.  The  Common  Law  in  America  is  not 
now  identical  with  that  of  England,  of  course,  because  of  the 

'  Below,  Chap.  XLIX. 


THE   STATE  JUDICIARY  387 

adaptation  which  has  been  made  by  the  rulings  of  the  American 
courts  to  New  World  conditions.  For  the  same  reason  the 
Common  Law  system  of  one  State  may  vary  materially  from 
that  of  another.  The  fact  is  to  be  borne  in  mind  that  the 
courts  of  a  State  are  independent  in  their  judgments ;  they  are 
not  bound  by  the  decisions  of  the  courts  in  other  States.  They 
may  be  influenced  by  these  decisions ;  they  may,  indeed,  choose 
to  follow  them,  but  they  are  at  liberty  to  apply  the  law  in  their 
own  way.  The  result  is  that  the  principles  of  law  accepted  and 
enforced  in  one  State  may  differ  a  good  deal  from  those  in  an- 
other. Of  course  a  decision  of  a  State's  high  court  is  binding 
upon  all  of  the  lower  courts. 

Of  statutory  law,  Httle  need  be  said.  Its  volume  is  rapidly 
increasing  in  every  State.  Hundreds  of  statutes  are  likely  to 
be  added  at  each  session  of  a  State  legislature.  Many  of  these 
are  sadly  at  fault  both  in  content  and  form.  The  consequence 
is  new  causes  of  Htigation  and  a  steadily  increasing  burden  upon 
the  courts,  —  a  burden  which  would  be  lightened  to  a  consider- 
able extent,  if  the  statutes  were  properly  drafted.  The  general 
effect  is  to  make  the  courts  objects  of  criticisms  which  really 
should  be  directed  to  the  legislatures.  It  is  a  conspicuous  fact, 
indeed,  that  the  courts  are  frequently  held  blameworthy  for 
setting  aside  legislative  enactments  and  interpreting  statutes 
contrary  to  the  legislative  intent,  when  the  fault  was  with  the 
legislatures  themselves  which  should  have  seen  that  the  laws 
were  drafted  so  as  to  stand  the  severest  judicial  scrutiny. 

It  should  be  noted  in  this  connection  that  a  large  proportion 
of  the  statutes  enacted  by  the  legislatures  deal  with  govern- 
mental organization  and  functions,  with  administrative  methods 
and  problems,  and  therefore  do  not  affect  the  general  body  of 
private  law.  This  does  not  mean  that  private  law  is  not  sub- 
jected to  legislative  control  and  modification,  for  it  is  thus  con- 
trolled in  many  important  respects.  It  does  mean,  however, 
that  to  a  large  degree  the  development  of  private  law  is  left  to 
the  courts.  The  tendency  is  clearly  toward  an  invasion  of  the 
Common  Law  field  by  statutory  regulations.  As  illustrating 
the  activity  of  the  legislatures  in  this  respect,  attention  may  be 
called  to  the  statutory  penal  codes  which  have  been  substituted 
in  many  States  for  the  Common  Law  of  crimes,  and  to  the 
enactment  of  laws  regulating  in  detail  both  criminal  and  civil 


388  COMPARATIVE   FREE   GOVERXMEXT 

procedure.  In  some  States,  New  York  especially,  codification 
of  the  Common  Law  upon  particular  subjects  has  been  carried 
out  and  the  Common  Law  provisions  have  been  transformed 
into  statutes.  In  a  few  States  the  attempt  has  been  made 
to  codify  the  entire  civil  law.  This  has  not  been  particu- 
larly successful,  however,  and  it  may  be  doubted  whether  the 
States  generally  will  go  to  this  extreme.  The  beUef  is  wide- 
spread that  extended  codification  tends  to  make  the  law  too 
inflexible. 

In  connection  with  the  Common  Law,  it  is  important  to  note 
that  the  English  system  of  Equity  was  also  transported  to 
America  and  was  adopted  by  most  of  the  States  essentially  as 
it  was  administered  by  the  English  courts.  It  will  be  recalled 
that  Equity  jurisdiction  is  conferred  on  the  federal  courts  by 
the  Constitution  of  the  United  States.  Equity  rules  are  still 
enforced  in  the  States.  In  some  there  are  distinct  Equity  courts, 
but  in  others,  as  is  also  true  of  the  federal  judiciary,  the  same 
courts  administer  both  Law  and  Equity.  In  still  other  States 
the  distinction  between  legal  and  equitable  remedies  has  been 
abolished  by  statute.  This  does  not  mean,  however,  that  the 
Equity  principles  are  abolished ;  the  change  affects  merely  the 
remedies  afforded  by  the  Equity  system,  which,  under  the 
change,  are  applied  according  to  the  same  procedure  as  those 
of  the  Common  Law.  It  is  a  significant  fact  that  in  States 
where  the  Law  and  Equity  systems  are  maintained  distinct, 
whether  administered  by  the  same  courts  or  not,  there  is  ap- 
parently an  increasing  disposition  to  resort  to  the  E(|uity  juris- 
diction, which  is  administered  by  the  judges  without  the  aid  of 
juries,  in  preference  to  that  of  the  Law.  This  is  due  to  the 
im[)erfcct  working  of  the  jury  system.  Attorneys,  where  the 
choice  of  remedies  exists,  frequently  prefer  Equity  actions 
before  judges  to  Law  actions  before  juries.  Moreover,  litigants 
of  their  own  choice  frequently  have  the  same  preference. 
Though  the  jury  system  is  a  highly  cherished  institution,  it  is 
generally  conceded  that  under  the  rules  usually  governing 
American  courts  its  working  is  far  from  ideal. 

A  word  may  be  added  concerning  the  juries,  which  are  im- 
portant parts  of  the  judicial  machinery.  Both  the  grand  jury 
and  petit  or  trial  jury  are  generally  used.  Tlie  function  of  the 
former  is  the  returning  of  indict menls  upon  criminal  charges. 


THE   STATE   JUDICIARY  389 

In  the  federal  courts,  by  constitutional  provision,  no  person 
may  be  tried  for  a  criminal  offense  except  upon  a  grand  jury 
indictment.  In  many  of  the  States  a  similar  provision  is  con- 
tained in  the  State  constitution.  In  some  States,  however,  a 
grand  jury  charge  is  not  necessary ;  prosecution  may  be  begun 
upon  the  filing  of  an  information  by  the  prosecuting  oflScer. 
The  trial  jury  is  everywhere  used,  but  the  rules  governing  it 
vary  from  State  to  State.  The  usual  thing  is  for  the  jury  to 
pass  only  upon  questions  of  fact,  leaving  to  the  judge  the  deter- 
mination of  the  law.  The  size  of  the  jury  varies  somewhat, 
even  in  the  same  State,  depending  upon  the  nature  of  the  suit 
at  trial.  It  is  not  possible  to  discuss  here  in  detail  the  rules 
applying  ta  juries  or  to  enumerate  the  various  criticisms  made 
concerning  their  work.  One  point  only  will  be  mentioned,  — 
the  usual  requirement  of  a  unanimous  verdict.  This  makes  it 
possible  for  one  juror  to  "  hang  the  jury  "  and  prevent  a  verdict. 
This  is  a  common  occurrence,  in  fact,  and  many  mistrials  have 
resulted  from  the  obstinacy  or  corrupt  action  of  a  single  juror. 
In  some  States  the  requirement  of  a  unanimous  verdict  has  been 
done  away  with. 

Criticism  of  the  State  Judiciary.  —  Criticism  of  the  courts  is 
widely  prevalent  in  America.  There  is,  indeed,  very  great  dis- 
satisfaction with  judicial  administration.  Justice  has  by  no 
means  always  been  done.  Equality  before  the  law  oftentimes 
has  been  a  fiction  rather  than  a  fact.  The  legal  rights  of  the 
rich  not  infrequently  are  much  more  certain  of  protection  than 
are  the  rights  of  the  poor.  Particularly  has  the  administration 
of  the  criminal  law  been  faulty.  In  every  State  glaring  examples 
may  be  found  of  breakdowns  in  the  administration  of  punitive 
justice.  The  conditions  are  far  worse  in  some  States  than  in 
others,  as  a  matter  of  course,  but,  taking  all  the  States  together, 
criminal  law  administration  is  notably,  inexcusably  weak.  A 
common  opinion  is  expressed  in  the  frequently  quoted  state- 
ment of  President  Taft :  "  No  one  can  examine  the  statistics 
of  crime  in  this  country  and  consider  the  relatively  small  num- 
ber of  prosecutions  which  have  been  successful,  without  realiz- 
ing that  the  administration  of  the  criminal  law  is  a  disgrace 
to  our  civilization."  '  The  reasons  for  this  lamentable  condition 
are  numerous.     As  suggested  above,  the  working  of  the  jury 

'  Reinsch,  "  Readings  on  American  Slate  Government,"  p.  177. 


390  COMPARATIVE   FREE   G0VERX:MENT 

system  is  in  part  responsible.  The  machinery  of  the  courts  is 
cumbersome  and  slow  moving.  Judges  fail  to  retain  proper 
control  over  the  trial  of  cases  or  are  prevented  from  doing  so 
by  rules  of  procedure  imposed  by  the  legislature.  The  right  of 
appeal  is  carried  to  unreasonable  lengths.  Technicalities  of 
procedure  are  often  exalted  in  the  estimation  of  judges  to  a 
place  which  is  beyond  all  reason.  In  many  instances  guilty 
persons  go  free  of  punishment  because  of  minor  procedural 
errors  which  in  no  way  affect  the  question  of  their  guilt.  The 
seeking  of  justice  is  made  wearisome  by  needless  delays  and  by 
unnecessary  expense.  Flagrant  failures  to  carry  out  the  con- 
stitutional provision,  found  in  all  of  the  States,  which  guaran- 
tees "  speedy  "  trials  to  persons  charged  with  crime,  are  no- 
toriously common.  In  short,  inefficiency  characterizes  to  a 
high  degree  the  criminal  law  administration  in  the  American 
States.  But  this  inefificiency  is  not  confined,  however,  to  the 
enforcement  of  criminal  laws;  it  frequently  characterizes  civil 
procedure  as  well.  It  is  not  to  be  understood,  of  course,  that 
the  courts  of  all  the  States  are  equally  open  to  the  criticisms 
which  have  been  suggested,  and  to  others  which  might  be 
added.  But  in  every  State  the  problem  of  judicial  administra- 
tion is  of  prime  importance,  and  in  every  State  modification  of 
judicial  procedure  is  urgent. 

As  would  naturally  be  expected,  llie  unsatisfactory  conditions 
which  have  been  mentioned  have  led  to  a  demand  in  many 
States  for  radical  reforms  in  connection  with  the  judicial  system. 
There  is  no  unanimity,  however,  as  to  what  should  be  done. 
It  is  urged  by  some  that  there  should  be  a  popular  recall  of 
judges.  It  is  urged  by  others  that  there  should  be  a  thorough 
revision  of  the  rules  of  procedure  and  that  the  judges  should  be 
given  greater  power  in  the  conduct  of  cases.  By  still  others  it 
is  argued  that  a  complete  reorganization  of  the  judicial  system 
is  necessary.  Important  changes  in  the  relations  of  the  bar 
to  the  courts  are  suggested,  as  are,  also,  changes  in  ihr  jury 
system.  These  and  many  other  proposed  reforms  with  resjjcct 
to  particular  matters  have  been  brought  forward,  but  future 
developments  must  determine  what  fundamental  changes  shall 
be  made.  In  some  States  substantial  progress  has  been  made 
in  the  sim[)lification  of  court  ])r()cedure  and  in  expediting  judicial 
business.     The  results  of  these  attenijjts  at  reform  have  been 


THE   STATE  JUDICIARY  391 

wholesome  and  give  promise  that  ultimately  in  all  of  the  States 
the  administration  of  justice  will  be  upon  a  high  plane  of  efB- 
ciency. 

It  needs  no  particular  emphasis  to  make  it  clear  that  the 
whole  problem  of  judicial  administration  is  one  of  fundamental 
concern  to  the  American  people.  The  courts  have  a  peculiar 
function  to  perform  in  the  evolution  of  the  American  democracy. 
Their  position  is  such  in  the  constitutional  system  that  upon 
them  may  depend  political  as  well  as  legal  developments  of  far- 
reaching  influence. 

REFERENCES 

Baldwin.     The  American  Judiciary. 

Beard.  American  Government  and  Politics,  Edition  1914,  Chap.  XXVI. 
Bryce.  The  American  Commonwealth,  Edition  19 10,  Vol.  I,  Chap.  XLII. 
Reinsch.     Readings  on  American  Slate  Government,  Chaps.  Ill,  IV. 


PART    II 

ENGLAND,  FRANCE,  GERMANY, 
AND  SWITZERLAND 


ENGLAND 

CHAPTER  XXX 

The  Cabinet  System 

The  Cabinet  system  involves  a  division  of  the  executive  into 
partisan  and  non-partisan  elements.  It  places  the  non-partisan 
functions  in  the  hands  of  a  monarch  or,  as  in  the  case  of  France, 
a  president,  while  the  partisan  functions  pass  into  the  hands  of 
the  chief  ministers  of  state.  The  body  of  chief  ministers  con- 
stitutes the  Cabinet.  They  are  usually  members  of  the  legis- 
lature and  as  party  leaders,  whether  members  of  it  or  not,  they 
control  the  legislature.  Separately  each  member  of  the  Cabinet, 
with  an  occasional  exception,  administers  a  department  of  the 
executive,  but  they  are  jointly  responsible  for  the  conduct  of 
the  government.  At  the  head  of  the  Cabinet  is  the  Prime 
Minister  who  presides  at  its  meetings  and  is  its  chief  spokes- 
man in  the  legislature  and  before  the  country.  The  system 
thus  requires  two  ofificial  heads.  The  King  or  President  is  the 
nominal  head,  or  ruler  of  the  entire  people,  and  his  duties  are 
non-partisan.  The  Prime  Minister  speaks  with  authority  on 
all  matters  of  disputed  party  politics. 

"  Parliamentary  government  "  is  a  term  often  used  as  a  syno- 
nym for  Cabinet  government.  The  system  has  arisen  out  of 
conflict  between  monarchs  and  representative  assemblies.  In  an 
absolute  monarchy  the  monarch  rules  through  officers  whom  he 
appoints.  Monarchy  becomes  limited,  or  constitutional,  when 
a  representative  assembly  is  added,  although  the  chief  officers 
in  the  executive  may  still  be  subject  to  appointment  and  re- 
moval by  the  monarch.  A  constitutional  monarchy  becomes  a 
Parliamentary  or  Cabinet  government  when  ihe  representatives 
of  the  people  assume  thci:)ower  of  dismissing  the  King's  ministers. 
Political  power  then  passes  from  the  monarch  to  the  legislature. 
There  is  a  sense  in  which  it  may  be  said  that  the  Cabinet  con- 
trols the  legislature,  because  it  must  command  the  continuous 
support  of  a  majority  of  the  legislature.     The  legislature  also 

395 


396  COMPARATIVE   FREE   GOVERNMENT 

in  a  sense  controls  the  Cabinet,  because  at  any  time  the  ma- 
jority may  be  changed  to  a  minority,  thus  forcing  the  Cabinet 
to  resign.  The  term  "  Cabinet  government "  is  suggestive  of  the 
control  of  the  Cabinet  over  both  administrative  and  legislative 
business.  The  term  "Parliamentary  government"  emphasizes 
the  authority  of  the  legislature.  Another  synonym  is  equally 
significant.  Cal)inet  government  is  denominated  "  Responsible 
government."  The  term  calls  attention  to  the  united,  concen- 
trated responsibility  for  both  executive  and  legislative  business 
which  rests  upon  the  Cabinet.  The  Cabinet  is  directly  respon- 
sible to  the  representatives  of  the  people  for  its  policies.  This 
relation  to  the  legislature  is  the  essential  feature  of  ''  Respon- 
sible government." 

These  few  characteristic  quaUties  are  found  in  every  form  of 
Cabinet  government.  A  brief  comparison  of  the  English  and 
American  systems  will  serve  to  bring  out  more  clearly  these  dis- 
tinguishing features.  In  the  Cabinet  system  the  legislature 
and  the  working  executive  are  united.  Those  persons  who  are 
responsible  for  the  administration  of  the  laws  are  not  merely, 
as  usual,  members  of  the  legislature ;  for  the  time  being  they 
also  control  legislation.  The  members  of  the  Cabinet  hold 
ofiice  because  they  have  the  support  of  a  majority  in  the 
legislature.  When  they  cease  to  have  this  support  they  give 
I)lace  to  ministers  who  do  lead  or  control  or,  at  least,  have 
the  support  of  the  legislature.  Bagehot  calls  the  Cabinet  a 
hyphen,  or  a  buckle,  by  which  the  two  departments  of  gov- 
ernment are  united.' 

The  American  system  involves  a  separation  of  the  executive 
and  the  legislature.  The  two  departments  are  assumed  to  be 
equal  and  coordinate,  but  tlu-  lawmakers  are  not  responsible 
for  administration.  Executive  officers  are  not  mem])ers  of  the 
legislature.  Tiiey  recommend  legislation  and  may  appear  before 
committees  of  the  legislature  in  support  of  their  measures;  but 
they  are  not  memljcrs  of  either  house  of  the  legislature,  and  it 
is  a  rare  excei)tion  for  an  executive  officer  to  be  permitted  to 
take  part  in  legislative  procedure.  The  theory  of  the  Constitu- 
tion recjuires  complete  .separation  of  dej)arlments.  Both  the 
Chief  Executive  and  the  members  of  the  legislature  are  chosen 
by  the  people  and  arc  equally,  coordinately,  and  independently 

'Bagehot,  "The  English  Constitution,"  p.  82  (Edition  of  1877). 


THE   CABINET   SYSTEM  397 

responsible  to  the  people  for  the  performance  of  governmental 
functions  looked  upon  as  separate  and  distinct. 

Personal  vs.  Corporate  Responsibility.  —  Executive  respon- 
sibility in  the  American  system  is  personal.  The  President  of 
the  United  States  as  Chief  Executive  is  individually  respon- 
sible for  the  entire  field  of  federal  executive  business.  The 
heads  of  the  departments  of  administration  are  appointed  by 
him,  are  removable  at  his  will,  and  are  held  responsible  to  him. 
The  chief  advisers  of  the  President  are,  as  a  body,  called  a 
Cabinet,  but  they  are  not  a  Cabinet  in  the  English  sense  of  the 
term.  They  advise  the  President  on  matters  of  general  execu- 
tive policy,  but  he  may  entirely  disregard  their  advice.  Each 
member  of  the  President's  Cabinet  is  responsible  to  his  chief 
for  the  administration  of  a  separate  department  as,  for  example, 
the  war,  navy,  or  post-office  department ;  but  there  is  no  such 
thing  as  joint  cabinet  responsibihty. 

The  English  Cabinet  is  itself  a  sort  of  corporate  personality. 
As  a  body  it  is  held  responsible  both  to  the  legislature  and  to 
the  people.  The  Cabinet  and  not  a  chief  person  rules  and 
governs.  It  is  true  that  most  members  of  the  Cabinet  are  the 
heads  of  separate  departments  of  the  executive ;  but  this  fact 
is  obscured  by  the  emphasis  given  to  the  joint  responsibility  of 
the  body  as  a  whole,  for  both  legislative  and  executive  poHcies. 
The  American  executive  is  personal ;  not  a  body  of  men,  but 
a  man  governs  in  the  case  of  the  general  government,  or  a 
half  dozen  men  independently  elected,  in  the  case  of  the  state 
executives,  but  in  either  case  the  rule  is  personal  and  not  cor- 
porate. 

King  or  President  in  Cabinet  Government.  —  The  English 
Cabinet,  however,  does  not  include  the  whole  of  the  executive. 
The  system  requires  a  person,  King  or  President,  who  is  nominal 
head  of  the  state,  and  who  is,  in  a  sense,  above  both  Cabinet 
and  legislature.  This  chief  person  performs  important  functions 
in  the  making  up  of  cal^inets  and  the  harmonizing  of  cabinet 
and  legislature.  He  is  usually  described  as  irresponsible.  He 
is  not  responsible  to  the  legislature,  because  his  duties  in  certain 
emergencies  may  require  him  to  traverse  the  will  of  the  legisla- 
ture. He  is  not  responsible  to  the  Cabinet,  for  the  same  reason, 
and  because,  nominally,  the  cabinet  members  are  his  ministers 
and  act  in  his  name.     In  an  important  sense,  however,  the  chief 


398  CO]\IPARATIVE  FREE   GOVERNMENT 

person  is  responsible  to  the  people.  It  is  his  solemn  duty  to 
seek  to  give  effect  to  the  will  and  choice  of  the  nation.  In  no 
case  is  he  permitted  to  enforce  his  own  will  against  the  will  of 
the  nation.  Fully  developed  Cabinet  government  is  a  democ- 
racy. In  so  far  as  the  nominal  head  of  the  state  exercises  per- 
sonal power  against  the  will  of  the  people,  the  government  is 
not  that  of  a  cabinet,  but  that  of  a  despot. 

In  England  the  nominal  head  of  the  executive  attains  and 
maintains  his  position  by  birth  and  education.  In  France  the 
two  houses  of  the  legislature  in  joint  session  elect  a  President 
once  in  seven  years,  not  to  govern,  but  to  harmonize  the  func- 
tions of  those  who  do  govern. 

The  Judiciary  in  the  Two  Systems.  —  The  contrasts  between 
Cabinet  and  Presidential  systems  of  government  are  by  no 
means  exhausted  in  the  relations  of  the  executive  to  the  legis- 
lature and  the  personnel  of  the  two  executives.  The  judiciary 
of  the  two  systems  presents  differences  equally  notable.  Cabinet 
government  is  an  agency  for  expressing  the  will  of  a  ruling  vot- 
ing constituency.  The  Cabinet  represents  and  personates  con- 
tentious politics.  For  the  time,  it  is  the  agent  of  the  dominant 
party  as  represented  in  the  legislature.  As  the  agent  of  the 
legislature  the  Cabinet  acts  without  legal  restrictions.  In  a 
Cabinet  government  there  can  be  no  legal  restrictions.  The 
legislature,  including  as  it  does  the  executive,  represents  supreme 
power,  and  the  system  does  not  admit  of  legal  checks.  Are  the 
courts,  then,  at  all  times  subject  to  the  will  of  Parliament? 
Assuredly  they  are.  To  one  trained  under  the  English  system 
it  is  unthinkable  that  a  court  should  presume  to  set  aside  an 
Act  of  Parliament.  Parliament  ordains  and  establishes  the 
courts  and  defines  their  functions.  Judges  are  removable  by 
act  of  the  two  houses.  If  tiie  judges  interpret  a  law  in  a  manner 
not  satisfactory  to  the  government  of  the  day,  the  law  may  be 
changed.  The  judiciary  is  non-political,  or  outside  of  conten- 
tious politics.  Judges  are  trained  to  respect  the  will  and  inten- 
tion of  the  lawmakers  in  their  inter])retation  of  statutes  and  to 
consider  public  <)i)inion  in  their  interpretation  of  Common  Law. 
Hence  the  Judiciary  is,  in  fact,  largely  indejjendent  of  party 
politics. 

The  American  system  is  strikingly  dilTerent.  In  it  the  powers 
are  divided  and  set  one  against  the  other,  so  that  no  oflker  or 


THE   CABINET  SYSTEM  399 

combination  of  officers  is  in  a  position  to  express  without  re- 
straint the  will  of  the  state.  The  legislature  acts  subject  to 
limited  executive  veto ;  and  when  a  law  has  been  approved, 
the  judiciary  may  nullify  the  act,  basing  the  decision  on  some 
clause  or  some  principle  embodied  in  the  written  Constitution. 
In  theory  the  people  may  change  the  Constitution,  but  in  the 
case  of  the  federal  Constitution  the  method  is  so  complicated 
as  to  render  a  change  extremely  difficult.  The  result  is  that  the 
judiciary  is  continuously  brought  into  poUtical  partisan  con- 
troversy.^ 

The  Natural  vs .  the  Artificial  in  Government.  —  Again,  the 
two  systems  of  government  are  contrasted  in  respect  to  origin 
and  nature.  One  is  derived  from  a  process  of  evolution ;  the 
other  is  a  product  of  logical  analysis  and  artificial  construction. 
Bagehot  is  surely  correct  in  saying  that  a  Cabinet  government 
could  never  have  been  the  result  of  deliberate  plan  and  inten- 
tion. It  could  have  originated  only  through  a  long  process  of 
adjustment  of  forces  to  solve  temporary  difficulties.  The 
system  as  known  to-day  is  of  recent  origin. 

The  distinctive  features  of  the  presidential  system  are  the 
result  of  conscious  logical  analysis.  The  system  could  never 
have  come  into  existence  except  as  the  result  of  a  dehberate 
plan.  Each  of  the  systems  stands  for  certain  well-known  and 
enduring  qualities  found  in  all  governments,  the  artificial  and 
the  natural.  The  English  were  continuously  seeking  to  create 
specific  agencies  for  the  safe-guarding  of  liberty  and  the  pro- 
motion of  efficiency,  but  these,  for  the  most  part,  failed.-  The 
Cabinet  developed  unconsciously  as  a  by-product  of  continuous 
striving  for  limitations  on  the  Crown. 

When  experienced  Europeans  were  transplanted  to  America, 
there  ensued  a  great  contribution  to  conscious,  artificial  state- 
building  unhampered  by  custom  or  tradition.  Where  old  names 
were  used  and  old  customs  were  apparently  followed  in  the  new 
environment,  they  became  essentially  new.  Men  knew  when 
and  how  each  governmental  institution  was  created  in  the 
wilderness.     Boundary  lines   were   artificially   drawn,   crooked 

•  Above,  pp.  277-280. 

^  Conspicuous  examples  of  such  efforts  are  the  appointment  of  twenty-five  barons 
for  the  enforcement  of  Magna  Charta,  the  Provisions  of  Oxford,  Temple's  scheme 
for  the  organization  of  the  executive. 


400  COMPAR.\TWE  FREE   GOVERNMENT 

lines  became  straight,  townships,  counties,  and  States  became 
rectangular  and  were  bounded  by  meridians  and  parallels. 
Everything  was  given  an  artificial  cast.  Statesmen  of  the  Ameri- 
can Revolution  distrusted  direct  popular  rule,  so  they  ordained 
by  a  constitution  which  the  people  could  not  easily  amend,  that 
executive  power  should  rest  in  the  hands  of  a  President  indirectly 
chosen,  and  that  abuse  of  power  should  be  prevented  by  separat- 
ing the  legislature,  executive,  and  judiciary,  and  making  each 
a  check  upon  the  others.  It  was  a  device  to  give  effect  to  a 
theory.  Thus  the  two  Governments  of  England  and  America 
show  diversity  in  origin ;  in  one  the  unconscious  element  is 
dominant,  in  the  other  the  conscious,  yet  in  practice  this 
difference  grows  less  distinct,  each  form  of  government  tending 
to  assume  the  qualities  of  the  other ;  for  government  is  by  nature 
partly  artificial  and  j)artly  natural. 

The  Relation  of  the  Cabinet  to  Party.  —  The  English  Cabinet 
is  identified  with  a  political  party ;  it  is  itself  the  one  organ  for 
giving  final  expression  to  party  opinion  and  party  policy.  By 
the  very  acts  of  assuming  and  exercising  responsible  govern- 
ment the  Cabinet  fulfills  party  pledges  and  formulates  party 
platforms.  Cabinet  government  of  the  English  type  is  a  real 
government.  The  Cabinet  holds  office  because  at  a  partisan 
election  their  party  has  obtained  a  majority  in  the  House  of 
Commons.  The  life  of  the  Cabinet  is  dependent  on  the  con- 
tinued approval  of  a  majority  of  the  House.  When  a  Cabinet 
fails  to  command  a  majority  it  ceases  to  govern,  though  it  still 
maintains  its  integrity  as  a  body  of  party  leaders.  The  system 
assumes  that  there  shall  Ijc  two  ruling  i)arties  which  shall  alter- 
nately assume  control  of  the  government.  The  defeated  Cabi- 
net still  holds  its  position  in  Parliament  as  the  leader  of  the 
party.  It  is  variously  described  as  the  King's  Opposition  or  the 
"  Shadow  Cabinet."  The  rival  groups  of  leaders  continually 
face  each  other  in  Parliament,  the  one  in  ofiice  and  the  other  a 
candidate  for  office.  The  Opposition  serves  the  country  as 
expert  critics  of  the  Government.  The  ])olicy  of  the  Cabinet 
iscontiiiuallv  niodificd  by  the  criticism  of  leaders  of  the  opposing 
party. 

Only  the  English  type  of  Cabinet  government  identifies 
government  with  a  party.  On  the  Continent  of  Europe  cabi- 
nets are  composed  of  combinations  of  leaders  of  various  parties. 


THE   CABINET   SYSTEM  40I 

The  cabinet  is  not  itself  the  organ  of  a  party ;  it  usually  repre- 
sents a  number  of  party  groups.  No  single  party  commands  a 
majority  in  the  legislature.  Temporary  majorities  are  made  by 
coalitions  of  parties.  The  Cabinets  are,  indeed,  made  up  of 
party  leaders,  but  leaders  of  different  parties.  The  parties 
influence  government,  but  they  do  not  govern.  No  Shadow 
Cabinet  confronts  the  government  ready  to  take  office  as  soon 
as  the  ruling  Cabinet  is  defeated.  After  a  cabinet  crisis  often 
a  number  of  the  same  party  leaders  will  reappear  in  the  newly 
organized  Cabinet. 

The  President  and  the  Monarch.  —  The  Presidential  system 
of  government  was  organized  with  the  distinct  intention  of 
excluding  monarchy.  In  this  connection  it  is  a  matter  of  in- 
terest to  note  that  in  its  practical  working  the  American  system 
has  tended  to  give  increased  prominence  to  personal  rule  and 
personal  leadership.  This  is  true  in  respect  to  legislation,  as 
well  as  in  executive  policy.  So  great  have  been  the  difficulties 
in  attaining  efficiency  and  responsibility  in  legislative  bodies 
with  restricted  powers,  that  the  people  have  been  led  to  look 
for  these  qualities  in  the  mayors  of  cities,  the  governors  of 
states,  and  in  the  President  of  the  United  States.  Some  would 
say  that  the  discarded  monarchy  is  being  restored  by  a  process 
of  evolution.  On  the  other  hand,  in  countries  where  the  mon- 
archy is  retained,  personal  rule  is  being  eliminated  from  govern- 
ment. The  nominal  chief  magistrate  personates  power  and 
symbolizes  unity,  while  a  corporate  body  of  men  actually  exer- 
cise power.  It  can  no  longer  be  maintained  that  monarchy  and 
democracy  are  exclusive  terms. 

It  is  now  well  understood  that  hereditary  monarchy  is  not 
at  all  necessary  to  the  maintenance  of  the  Cabinet  system. 
The  experience  of  France  proves  that  an  elected  President  may 
readily  take  the  place  of  the  monarch  in  that  system.  The 
American  government  could  be  transformed  into  a  cabinet 
government  by  fusing  together  the  executive  and  the  legisla- 
ture, and  still  remain  a  republic.  In  that  case  the  President 
would  cease  to  be  the  responsible  executive,  but  would  remain 
the  dignified  and  apparent  head  of  the  state,  and  would  become 
the  coordinator  and  adjuster  of  the  governmental  powers. 
In  other  words,  the  President  would  become  practically  a  king 
in  a  democratic  state,  but  if  the  American  President  should  be- 


402  co:mparative  free  government 

come  a  hereditary  monarch,  still  retaining  all  his  powers,  the 
state  would  be  essentially  despotic.  The  Cabinet  is  the  one 
clearly  recognized  agency  for  preserving  democratic  monarchy. 

REFERENCES 

Bagehot.     The  English  Constilution,  Edition  Second,  Chaps.  I  and  II. 
Dicey.     The  Law  of  the  Constitution,  Edition  Eighth,  Chap.  I. 
Lowell.     The  Government  of  England,  Edition  1908,  Chaps.  I  and  II. 
Ogg.     The  Governments  of  Europe,  Edition  1914,  Chaps.  I  to  III. 
Wilson.     The  Slate,  Revised  Edition,  Chaps.  X  and  XI. 


CHAPTER  XXXI 

The  Nature  of  the  English  Constitution 

The  state  in  England  is  personified  in  its  King.  In  his  name 
all  the  processes  of  government  are  carried  on.  By  his  Ministers 
the  laws  are  executed ;  as  his  agents  the  two  houses  of  Parlia- 
ment make  and  amend  laws  and  vote  supplies ;  in  his  name  the 
courts  of  the  realm  dispense  justice.  Every  official  act  is 
nominally  that  of  the  sovereign.  Nevertheless  "  the  King 
reigns  but  does  not  govern."  He  may  influence  administrative 
and  legislative  policies,  but  the  real  power  rests  with  a  repre- 
sentative assembly  under  the  guidance  of  groups  of  party  leaders 
whose  leadership  is  entirely  unknown  to  the  law.  The  govern- 
ment is  of  two  parts,  the  one  formal  and  legal,  the  other  not  rec-. 
ognized  by  law  but  active  and  efficient. 

All  this  is  as  different  as  possible  from  the  form  of  govern- 
ment in  the  United  States.  For  the  most  part,  the  formal 
Constitution  of  the  United  States  and  the  actual  working  con- 
stitution are  identical ;  at  least  they  are  not  directly  contradic- 
tory. A  fundamental  law  coming  from  the  people  as  the  source 
of  power  created  the  office  of  President  and  in  part  defined  its 
powers.  This  law  also  called  into  existence  and  empowered 
the  two  houses  of  the  legislature.  It  laid  upon  Congress  the 
duty  of  organizing  a  judiciary  whose  powers  it  in  part  defined. 
The  work  was  done  consciously  with  the  purpose  of  creating 
"  a  republican  government." 

The  Kingship  and  the  House  of  Lords.  —  In  the  English 
Constitution,  no  conscious  effort  toward  democracy  is  evident. 
The  present  form  of  government  is  a  growth,  not  a  creation. 
The  origins  and  early  character  of  the  Kingship,  the  central 
fact  of  the  legal  Constitution,  is  shrouded  in  the  mysteries  of 
the  past.  It  is  known  that  in  the  fifth  century  conquering  chiefs 
from  the  Continent  displaced  Roman  authority  in  the  British 
Isles.     Numerous  petty  kingdoms  arose,  and  in  the  course  of 

403 


404  COMPARATIVE   FREE   GOVERNMENT 

time  became  uniled  under  the  West  Saxon  rulers.  The  con- 
quests of  Danes  and  Normans  in  the  eleventh  century  brought 
modifications  in  the  kingship.  Thus,  by  a  series  of  accidents 
and  favorable  conditions,  the  Crown  came  into  existence.  At 
no  time  was  the  office  definitely  established.  By  habit,  by 
custom,  by  legal  fiction,  the  monarch  came  to  be  accepted  as 
the  source  of  all  law,  all  authority,  and  these  legal  fictions  re- 
main in  the  processes  of  government  to-day. 

The  House  of  Lords  is  equally  venerable  and  uncertain  in 
origin.  Freeman,  the  historian,  considers  the  Upper  House  of 
Parliament  at  least  as  old  as  the  monarchy  itself.  Before  there 
were  hereditary  monarchs,  tribal  or  national  assemblies  existed 
whose  members  chose  leaders  of  the  host  in  time  of  war,  and  who 
were  active  in  changing  the  temporary  leader  into  a  permanent 
ruler.  The  early  kings  were  elective.  The  Council  selected 
a  member  of  the  ruling  family.  As  the  kingship  grew  in  im- 
portance the  Council  remained  as  the  chief  agency  through 
which  the  king  maintained  working  relations  with  his  people. 
Its  early  Saxon  name  was  Witan  or  Witenagamote.  After  the 
JSforman  Conquest  it  was  known  under  various  names  as  Curia, 
Commune  Concillium,  Council,  or  Assembly  of  Notables.  Later, 
after  elected  members  had  been  added  and  these  had  separated 
to  form  a  House  of  Commons,  the  old  assembly  continued  under 
the  designation  of  House  of  Lords. 

The  House  of  Commons  and  the  Judiciary.  —  The  House  of 
Commons  is  not  .so  old  as  the  institution  now  called  the  House 
of  Lords,  but  its  origin  is  scarcely  less  mysterious  and  uncertain. 
A  definite  date,  1295,  can  be  assigned,  however,  as  an  important 
period  in  the  history  of  the  Lower  House  of  Parliament.  In 
that  year  Edward  I  called  to  the  meeting  of  his  Great  Council 
representatives  from  counties,  boroughs,  and  cities.  To  this 
assembly  the  name  "  Model  Parliament  "  has  been  given. 
I'^arl  Simon  had  called  a  similar  assembly  as  early  as  1265  and 
on  many  occasions  counties  and  boroughs  had  l)ecn  invited 
to  send  representatives  to  confer  willi  the  King  in  Council. 
The  House  of  Commons  did  not  originate  in  the  Model  Parlia- 
ment of  Edward  I.  It  came  into  existence,  no  one  knows  how, 
during  the  long  reign  of  ICdward  HI  (1,^27  1.^77),  when  the 
members  chosen  from  (•()ur>(ies  and  Ijoroughs  became  separated 
from  the  Council  and  fcjrmed  a  disiintt  House. 


THE   NATURE   OF  THE   ENGLISH   CONSTITUTION     405 

The  word  Parliament  came  into  use  with  the  Normans  from 
France.  It  was  early  applied  to  meetings  of  the  King  in  Coun- 
cil when  engaged  in  judicial  business.  Later  the  term  was  used 
to  designate  the  ordinary  meetings  of  the  Council.  When 
representatives  were  added,  and  two  houses  were  formed,  Parlia- 
ment remained  the  convenient  designation  of  the  body  composed 
of  the  King  and  the  two  Houses. 

In  the  early  days  the  King  in  Council  exercised  all  the  high 
powers  of  government,  legislative,  executive,  and  judicial.  The 
Council  with  the  King  was  then  the  highest  court  of  the  realm. 
As  early  as  the  reign  of  Henry  I  (1100-1138),  members  of  the 
King's  Council  visited  the  counties  and  administered  justice 
in  the  King's  name.  During  the  reign  of  Henry  II  (1154- 
II 89),  a  body  of  men  under  the  name  of  Ciiria  Regis,  became 
differentiated  from  the  Council,  as  a  Judicial  Committee  ad- 
ministering justice  in  the  counties.  A  hundred  years  later 
committees  of  the  Curia  Regis  took  the  form  of  permanent  courts 
of  law  separated  from  the  Council.  The  King,  however,  still 
retained  supreme  judicial  power.  The  Council  was  still  the 
highest  court  of  appeal.  As  a  heritage  from  these,  its  early 
powers,  the  House  of  Lords  to-day  is  the  highest  court  of  ap- 
peal for  nearly  all  cases  in  the  United  Kingdom,  and  a  commit- 
tee of  the  Privy  Council  is  the  highest  court  of  appeal  for  India 
and  the  Colonies.  Thus  the  courts  of  England,  like  the  two 
Houses  of  Parliament  and  the  Crown,  have  been  gradually 
evolved  out  of  the  habits,  customs,  and  incidents  of  English 
history.  The  English  form  of  government  has  come  into 
existence  through  a  long  process  of  adaptation  and  adjustment. 

Written  vs.  Unwritten  Constitutions.  —  In  outward  form 
resemblances  exist  between  the  English  and  American  govern- 
ments. The  President  and  his  Cabinet  suggest  the  King  and 
his  Ministers ;  the  upper  and  lower  houses  of  Congress,  the  two 
houses  of  Parliament.  In  both  countries  a  distinct  and  separate 
judiciary  exists.  These  are  the  most  striking  likenesses.  All  the 
American  organs  of  government  have  been  created  by  the  enact- 
ment of  a  written  Constitution  which  is  their  warrant  for  existence, 
and  their  relations  are  in  a  measure  defined  by  this  document. 
The  courts  recognize  it  as  supreme  law.  Any  law  enacted  by 
the  President  and  Congress  must  be  in  harmony  with  the  Con- 
stitution or  the  judges  will  refuse  it  judicial  sanction  if  its  valid- 


4o6  COMPARATR^  FREE   GOVERNMENT 

ity  is  questioned.  The  position  of  the  Judiciary  in  England  is 
radically  different.  Anything  which  the  King  in  Parliament 
does  or  enacts  is  legal.  All  power  rests  with  the  King  in  Parlia- 
ment or  the  King  in  Council.  Parliament  itself  determines 
the  rules  that  shall  govern  the  conduct  of  Crown,  Commons, 
and  House  of  Lords  in  their  relations  to  one  another.  For  the 
most  part  these  rules  are  mere  understandings  that  have  grown 
up  in  the  past.  Disagreements  arising  among  the  three  constit- 
uent parts  of  Parliament  must  be  settled  by  argument,  compro- 
mise, or  force.  There  is  no  superior  law  or  constitution  to 
compel  harmony.  Parliament  cannot  do  an  unlawful  thing 
because  it  is  supreme  in  all  matters  of  law. 

The  English  Judiciary,  then,  is  distinctly  subordinate  to 
Parliament.  It  is  not,  as  is  the  judiciary  in  the  United  States, 
an  equal  and  coordinate  branch  of  the  government.  Nearly 
all  the  courts  were  created  by  act  of  Parhament  or  by  act  of 
the  King  in  Council,  and  their  continued  existence  is  dependent 
upon  Parliament.  No  court  in  England  could  rule  that  any 
act  of  Parliament  is  illegal.  There  are  a  few  acts  of  Parliament 
providing  for  the  establishment  of  the  high  courts  and  the 
regulation  of  their  procedure,  and  a  few  acts  limiting  the  power 
of  the  Crown.  These  may  be  called  a  part  of  the  Constitution, 
but  most  of  the  rules  that  regulate  the  high  powers  of  govern- 
ment in  their  relations  to  one  another  have  been  made  by  custom 
without  any  formal  enactment.  The  Constitution  is  largely 
unwritten. 

Common  Law  as  an  Analogy.  —  How  such  an  unwritten 
Constitution  could  be  evolved  and  used  may  be  made  more 
comi)rchensiblu  by  reference  to  a  similar  development  in  English 
law.  The  Common  Law  which  prevails  in  England  and  Amer- 
ica to-day  has  grown  out  of  the  rulings  of  the  courts.  The 
judges  have  given  legal  force  to  the  common  sense  of  justice 
among  the  people.  Rules  of  conduct  that  were  ai)i)rovt'd  by 
the  courts  and  enforced  in  the  King's  name  became  law. 

As  society  was  ever  changing  and  new  rights  arose,  the  law 
was  adapted  to  meet  the  new  conditions,  or  '  ihc  king  was  called 
upon  to  render  justice  despite  the  rules  of  (oininoii  law,  or  Par- 
liament was  called  upon  to  enact  new  laws  in  aiiH'ndmenl  to  or 

'  iJisfussion  of  the  courts  of  ff|uity  is  omilttd  from  this  i)riif  (lcs(  ription,  intro- 
duced here  merely  for  analogy- 


THE  NATURE   OF  THE  ENGLISH   CONSTITUTION     407 

modification  of  or  repeal  of  the  common  law.  Thus  two  sorts 
of  laws  grew  up  in  England,  viz.,  those  that  originated  in  the 
rulings  of  the  courts  and  the  statute  laws.  These  two  kinds  of 
law  are  alike  in  that  their  authority  comes  ultimately  from  the 
same  source,  the  King  in  Parliament.  In  formulating  Common 
Law  the  judges  have  acted  under  the  authority  of  the  sovereign. 
The  Constitution  is  analogous  to  Common  Law  in  that  it  has 
grown  out  of  mere  habit  and  custom  and  has  undergone  con- 
stant change  to  meet  new  conditions. 

There  is,  however,  a  striking  contrast  between  the  common 
law  and  the  rules  of  conduct  regulating  the  relations  one  to 
another  of  the  high  offices  of  state.  Common  Law  is  law  be- 
cause its  rules  are  enforced  by  the  courts.  The  fact  of  enforce- 
ment makes  it  law.  The  customary  rules  observed  by  the 
monarch  in  his  relation  to  the  two  houses  of  Parliament  and  the 
rules  observed  by  them  in  their  relations  to  each  other  and  to 
the  Crown  cannot  be  enforced  by  the  Judiciary ;  the  Judiciary 
is  itself  subject  to  the  sovereign  will  of  Parhament.  Any  fine 
of  action  agreed  upon  by  the  three  branches  of  Parliament  is 
legal,  not  because  it  can  be  enforced  by  the  courts,  but  because 
it  proceeds  from  and  is  an  expression  of  the  will  of  the  sovereign. 

The  Rise  of  Democracy.  —  The  relations  of  the  three  branches 
of  Parliament  to  one  another  have  been  subject  to  constant 
change  and  readjustment.  The  Crown  has  at  times  dominated 
the  two  Houses.  At  one  time  they,  acting  without  the  monarch, 
declared  the  throne  vacant  and  proceeded  to  fill  it  by  electing 
an  alien  prince.  The  House  of  Lords  has  clearly  overshadowed 
the  House  of  Commons  during  certain  periods  of  English  history. 
The  general  tendency,  however,  has  been  to  transfer  power  from 
the  Crown  to  the  two  Houses,  from  the  Upper  House  to  the 
Lower  House  of  Parliament,  and,  finally,  from  the  Lower 
House  to  a  newly  created  voting  constituency.  This  revolution 
has  been  produced  by  a  gradual  process ;  by  calling  into  e.xist- 
ence  agencies  of  government  which  the  laws  of  England  do 
not  recognize  and  by  transferring  to  these  new  agencies  the 
high  powers  of  government.  Consequently  it  has  been  possible 
to  retain  the  old  institutions,  the  ancient  legal  forms  and  phrases 
in  all  lines  of  governmental  procedure,  the  legal  forms  which 
apparently  center  all  power  in  the  Crown,  and  at  the  same  time 
to   maintain   an    actual '  government    which    centers    supreme 


4o8  COMPARATIVE    FREE   GOVERNIVIENT 

power  in  a  voting  constituency.  The  real  Constitution  which  is 
now  in  force  in  England  is  not  only  not  written  ;  it  is  not  legally 
recognized  as  existing.  Nowhere  do  the  laws  or  legal  forms 
recognize  political  parties,  yet  England  is  governed  by  two 
competing  party  organizations  appealing  for  support  to  the 
voting  constituency.  The  laws  do  not  recognize  the  Cabinet, 
yet  in  each  of  the  two  ruling  parties  there  is  a  group  of  twenty 
or  more  statesmen  ready  to  take  ofSce  and  govern  the  British 
Empire  whenever  the  voting  constituencies  give  them  the 
majority  in  the  House  of  Commons.  One  of  the  groups  is 
always  in  ofhce  and  is  known  as  the  Cabinet,  or  the  King's 
Government ;  the  chief  leaders  of  the  other  group  face  the 
Government  in  the  House  of  Commons  and  are  known  as  the 
leaders  of  the  Opposition  or  the  "  Shadow  Cabinet."  These 
party  leaders  with  the  support  of  the  House  of  Commons  exer- 
cise nearly  all  the  high  powers  of  state  formerly  exercised  by 
the  King  in  Council  or  by  the  King  in  Parliament.  But  the 
Cabinet,  while  ruling  in  the  name  of  the  king,  tends  actually 
to  express  the  authority  of  the  enfranchised  Democracy. 

Meanings  of  the  Term  "Constitution."  —  The  term  "English 
Constitution  "  has  been  used  with  a  variety  of  meanings.  It 
denotes,  for  instance,  the  actual  government  of  a  king  and  a 
representative  assembly  which  has  endured  for  more  than  a 
thousand  years.  England  stands  as  the  most  conspicuous 
example  of  a  constitutional  monarchy.  It  has  always  been 
constituti(jnal ;  no  king  has  ruled  without  a  council  which 
conditioned  his  action.  It  is  natural,  therefore,  that  the 
Constitution  should  become  an  object  of  veneration  and  worship, 
a  sentimental  bond  of  union  for  the  lOnglish  citizenship,  a  word 
to  conjure  with  in  political  controversy.  Burke  calls  upon  his 
fellow-citizens  to  understand  the  Constitution  according  to 
their  measure;  and  lo  \(iuiate  when  they  are  not  able  to 
comi)rehend.'  As  thus  used  the  term  ai)[)eals  to  the  sentiment 
of  patriotism  ;  it  summarizes  all  that  has  made  I'-ngland  great. 
To  analyze  and  define  such  a  Constilnlioii  would  destroy  its 
usefulness.  As  Bagehot  said  of  asimilaraltitudeloward  royalty, 
"  If  you  begin  to  i)oke  about  it  you  cannot  reverence  it."  ^ 
Not    until    the   (real ion   of  other   national   constitutions   which 

'  Burke,  "Works,  "  HI,  i-.  114.  Ouotcd  !)>•  Dicey,  "The  Law  of  the  Constitu- 
tion," 1).  I.  '  Hagehot,  "The  Knglish  Constitution,"  p.  127. 


THE  NATURE  OF  THE  ENGLISH  CONSTITUTION     409 

forced  comparison  did  the  term  denote  in  England  anything 
more  definite  than  that  form  of  government  which  has  given  to 
England  a  favored  position  in  European  history. 

The  comparison  of  the  Constitution  of  England  with  that  of 
the  United  States  has  led  to  a  real  analysis  and  a  more  definite 
understanding  of  the  former.  Following  the  American  analogy, 
we  may  say  that  a  part  of  the  Constitution  is  written.  Magna 
Charta,  the  Petition  of  Right,  the  Habeas  Corpus  Act,  and  the 
Bill  of  Rights  are  laws  to  guard  the  liberties  of  the  citizens, 
such  as  appear  in  the  fundamental  laws  of  American  States  and 
also  in  the  federal  Constitution.  In  England  these  Acts  have 
not  usually  been  considered  a  part  of  the  Constitution.  They 
stand  simply  as  landmarks  in  the  long  series  of  conflicts  between 
kings  and  the  people's  representatives.  The  Constitution  as 
generally  understood  cannot  be  reduced  to  writing  and  enacted 
as  positive  law.  Its  great  merit  consists  in  the  fact  that  it  is 
not  rigid  ;  that  it  is  not  definite  and  explicit ;  that  it  admits  of  an 
infinite  variety  of  deHcate  adaptations  to  changing  conditions. 
Analysis  also  reveals  the  fact  that  the  English  Constitution  is 
constantly  the  subject  of  controversy.  The  Crown  and  each  of 
the  two  Houses  are  wont  to  appeal  to  ancient  and  time-honored 
custom  as  warrant  for  their  authority.  There  has  always  been 
controversy  as  to  the  limits  of  their  powers.  Each  of  the 
parties  to  the  dispute  has  been  wont  to  assume  that  there  is  an 
ancient  and  unchanging  Constitution  which  is  essential  to  the 
well-being  of  the  state,  and  that  the  line  of  action  insisted  upon 
by  their  opponents  is  a  violation  of  that  authority.  As  soon, 
however,  as  a  particular  controversy  is  settled  by  a  new  law  or 
an  agreed  line  of  conduct  it  ceases  to  be  of  any  constitutional 
interest.  In  the  terms  of  contentious  politics  in  England,  the 
two  ruling  parties  have  for  centuries  been  engaged  in  nothing 
else  than  violating  and  destroying  the  Constitution.  Yet  all 
parties  agree  that  during  all  this  time  the  Constitution  has  been 
enriched  and  amplified  and  better  adapted  to  meet  the  needs 
of  the  people. 

In  a  more  restricted  and  specialized  sense  the  English  Con- 
stitution is  the  guaranty  for  that  part  of  the  governmental 
system  that  exists  to-day  in  apparent  contradiction  to  the 
legally  recognized  government.  The  Cabinet  and  the  political 
parties  are  constitutional  agents  of  government,  but  they  are 


4IO  COMPARATIVE  FREE   GOVERNMENT 

not  legal  agents.  Every  official  act  of  the  King,  of  Parliament, 
of  the  House  of  Lords,  the  House  of  Commons,  or  the  Privy 
Council,  is  legal.  These  authorities  are  all  legally  recognized, 
and  what  they  do  has  the  force  of  law.  No  act  of  the  Cabinet 
or  of  the  party  organizations  is  legal.  When  the  Cabinet  wishes 
to  give  legal  effect  to  a  policy  it  must  do  it  through  the  Privy 
Council,  through  the  administrative  departments,  or  through 
the  Crown  and  the  two  Houses  of  Parliament.  The  Cabinet 
looks  to  the  Constitution  of  England  as  the  warrant  for  its 
authority.  In  this  new  sense  of  the  term,  the  Constitution 
becomes  a  sort  of  higher  law  since  it  requires  the  setting  aside 
of  some  of  the  rules  of  the  earUer  Constitution.  As  long  as  the 
King  in  Parliament  was  recognized  as  exercising  sovereign 
power  there  could  be  no  contradiction  between  the  Constitution 
and  legal  form.  The  contradiction  has  arisen  from  recognizing 
the  Democracy  as  the  political  sovereign  while  permitting 
ancient  forms  and  institutions  to  remain. 

Yet  the  new  democratic  Constitution  is  firmly  anchored  to 
the  past.  Its  supporters  are  not  a  whit  behind  others  in  laying 
claim  to  all  that  is  useful  for  them  in  past  history.  The  repre- 
sentative feature  was  always  present  in  the  Enghsh  government. 
Many  believe  that  the  popular  clement  was  much  more  efficient 
in  the  earUer  day  than  in  the  middle  period  under  alien  kings. 
It  was  always  in  order  for  King  and  Council  to  hearken  to  the 
appeals,  the  petitions,  and  the  complaints  of  their  subjects. 
It  involves  no  real  break  in  the  continuity  of  the  monarchy  to 
increase  its  deference  to  the  manifest  wishes  of  its  subjects,  to 
consent  that  government  be  influenced  by  the  advice  of  those 
in  close  touch  with  the  people.  The  present  advisers  of  the 
King,  that  is,  the  Cabinet,  are  chosen  in  a  sense  l)y  the  people 
and  act  with  their  authority.  Since  whatever  the  king,  with 
the  Lords  and  the  Commons,  does  is  legal,  they  may  legally 
consent  to  be  governed  I)y  llie  voting  constituency.  No  break 
with  the  past  has  come  from  making  the  House  of  Commons 
the  dominant  factor  in  the  I'.ngHsIi  government.  That  house 
has  become  the  leader  when  the  King  and  the  Lords  have  yielded 
their  power  to  it.  For  this  there  is  legal  sanction.  King,  Lords, 
and  Commons  may  also,  without  a  break  with  the  past,  recognize 
that  the  voting  constituency  possesses  poHtical  sovereignty  and 
may  execute  their  sovereign  will.     But  lliis  involves  a  transfer 


THE   NATURE  OF  THE   ENGLISH   CONSTITUTION      41 1 

of  sovereign  power.'  It  is  a  revolution.  It  sets  up  a  new 
political  sovereignty  while  permitting  a  legal  sovereignty  to 
remain  in  other  hands.  Under  the  new  Constitution  the  King, 
Lords,  and  Commons,  although  remaining  nominally  supreme 
in  government,  become  actually  subject  to  a  new  authority. 
So  long  as  this  condition  remains  the  new  Constitution  must  be 
accounted  as  extra-legal  or  super-legal,  a  higher  law  supplanting 
a  portion  of  the  formal  law. 

REFERENCES 

(See  References  to  Chap.  XXX.) 

Anson.     Laiv  and  Custom  of  the  Constitution,  Vol.  I,  Chaps.  I  to  III. 
Bryce.     The  American  Commonwealth,  Fifth  Edition,  Chaps.  Ill,  IV,  and 

XXXIII. 
Courtney.     The  Working  of  the  Constitution  of  the  United  Kingdom,  1901, 

Chap.  I. 
Hearn.     The  Government  of  England,  1886,  Chap.  I. 
Macy.     The  English  Constitution,  1897,  Chaps.  I  to  III. 
Medley.     English  Constitutional  History,  Second  Edition,  Introduction  and 

Chap.  VI. 


CHAPTER  XXXII 

Sources  of  the  English  Constitution  found  in  Local 
Government 

Counties,  townships,  hundreds,  parishes,  towns,  and  cities, 
transplanted  from  Europe  to  North  America  in  the  seventeenth 
century,  became  the  foundation  for  a  great  federated  repubUc. 
The  same  institutions  are  giving  to  England  a  unified  democracy. 
The  constitutions  of  the  two  countries  have  a  common  origin 
in  the  devotion  of  the  people  to  their  local  liberties.  In  the 
United  States  devotion  to  local  freedom  resulted  in  federation ; 
while  in  England  through  the  party  system  power  became 
centralized  in  the  Cabinet  and  the  House  of  Commons.  Yet 
in  England  as  in  America  the  Constitution  is  accounted  for 
by  tracing  the  relation  of  the  high  offices  of  state  to  counties, 
parishes,  boroughs,  and  cities.  These  are  older  than  the  king- 
ship, older  than  Parliament  and  the  high  courts.  The  original 
English  county,  or  shire,  is  a  survival  of  a  petty  kingdom,  and 
the  United  Kingdom  was  in  the  beginning  an  enlarged  county.^ 
The  county  is  the  one  institution  which  goes  farthest  in  explain- 
ing the  relation  of  King,  Parliament,  and  courts  of  law  to  the 
people.  To  account  for  the  formal  legal  Constitution  which 
makes  the  King  in  Parliament  sovereign,  the  Crown  would  be 
given  the  central  place  in  history ;  but  to  account  for  the 
democratic  Constitution  requires  attention  to  the  development 
of  the  counties  and  their  local  subrlivisions. 

History.  —  The  history  of  local  government  may,  for  our 
present  purpose,  be  considered  in  five  periods.  First,  the  Form- 
ative Period  extending  from  the  Saxon  Conquest  in  the  fifth 
century  to  the  Xorman  Conquest  in  1066.  In  these  centuries 
county  and  hundreds  courts  became  popular  representative 
assemblies.  Second,  the  Period  of  Royal  Control  over  local 
government,    extending    to    the    Model    Parliament    of    1295. 

'  Stubbs,  "The  Constitutional  History  of  England,  "  Vol.  1,  pp.  loy-iiS. 

412 


SOURCES   OF  THE  ENGLISH   CONSTITUTION  413 

Norman  and  Plantagenet  Kings  sent  their  representatives  to 
county  courts  and  only  gradually  substituted  for  this  system 
the  calling  of  county,  borough,  and  city  representatives  to  at- 
tend Parliament.  Third,  the  Period  of  Factional  Wars  extend- 
ing to  the  establishment  of  the  Tudor  Monarchy  in  1485. 
While  the  nobles  and  the  kings  fought  for  control  of  the  central 
government,  order  was  maintained  in  the  country  by  the  squir- 
archy  of  the  counties  and  the  merchants  of  the  towns;  local 
institutions  survived  under  royal  neglect.  The  Fourth  Period, 
from  1485  to  1832,  covers  the  centuries  during  which  Parhament 
became  more  and  more  the  recognized  bulwark -of  the  people 
and  local  organs  of  government  were  left  unchanged.  Fijth, 
from  1832,  with  the  repeatedly  enlarged  franchise,  attention 
has  again  been  drawn  to  local  institutions,  and  new  local  areas 
have  been  created  by  the  central  government  to  meet  new  needs.^ 
Formative  Period.  —  The  Saxon  invaders  of  Britain  brought 
with  them  some  sort  of  tribal  organization  under  chieftains  and 
wise  men.  Out  of  their  Httle  known  primary  institutions  they 
gradually  evolved  numerous  petty  kingdoms  which,  during  the 
eighth  and  ninth  centuries,  became  absorbed  by  that  of  the 
.West  Saxons.  But  the  smaller  kingdoms  instead  of  being 
destroyed  were  preserved  as  convenient  local  units.  The 
smallest  survived  as  shires,  and  he  who  had  been  king  became 
Ealderman  or  earl,  the  presiding  officer  in  the  shire-council  or 
county  court.  These  counties,  therefore,  are  simply  survivals 
of  kingdoms  in  which  the  King  in  Council  has  become  the  earl. 
Larger  kingdoms  were  subdivided  into  two  or  more  counties, 
but  the  existing  model  of  organization  was  naturally  followed. 
The  whole  kingdom  was  thus  divided  into  shires,  or  counties, 
each  of  which  had  its  county  court.  The  shire  was  subdivided 
into  hundreds,  boroughs,  or  cities.  The  hundreds  were  again 
divided  into  townships,  or  parishes.  Boroughs  and  cities 
existed  as  specialized  local  governments  for  dense  populations. 
The  hundreds  court  received  suitors  and  representatives  from 
townships  and  parishes  within  its  area.  The  county  court  was 
a  popular  assembly  attended  by  large  numbers  of  suitors  and 
representatives  from  hundreds,  boroughs,  and  cities.-     In  the 

1  Lowell.    "The    Government    of    England,"    Chap.    XXXVIII;    Ogg,    "The 
Governments  of  Europe,"  p.  176  cl  seq. 

«  Green,  "Historj-  of  the  English  People,"  Vol.  I,  p.  353. 


414  COMPAPL\TIVE  FREE  GOVERNMENT 

beginning,  also,  the  King  in  Council  represented  what  was 
actually  an  overgrown  and  amplified  shire  court  for  the  entire 
country.  The  county,  or  shire,  both  in  its  origin  and  through- 
out most  of  its  history,  has  been  the  chief  coordinating  agency 
between  the  local  and  the  central  government. 

The  foundations  for  democratic  government  had  been  laid 
before  the  Normans  came  to  England.  x\n  orderly  system  of 
local  government  had  been  evolved.  The  people  had  become 
thoroughly  grounded  in  the  belief  that  the  chief  duty  of  the 
King  and  his  advisers  was  the  protection  of  the  people  in  the 
enjoyment  of  their  local  liberties.  The  government  was  their 
friend.  Law  and  liberty  had  become  identified.  King  Alfred 
and  other  Saxon  rulers  personated  liberty. in  their  efTorts  to 
defend  the  people  against  ahen  conquerors.  They  did  not 
succeed  in  shutting  out  the  conquerors,  but,  far  better  than  that, 
they  did  succeed  in  forming  a  system  of  government  strong 
enough  to  withstand  foreign  encroachment  and  ultimately  to 
compel  all  rulers  to  o])ey  English  law.' 

Royal  Control.  —  WiUiam  the  Conqueror  introduced  many 
important  changes  into  the  organization  of  the  county  court, 
but  he  found  in  the  institution  itself  an  effective  means  of 
control  over  the  people.  The  king's  sherift"  as  his  special  repre- 
sentative became  the  presiding  officer  in  the  county  court  and 
linked  the  shire  more  closely  to  the  throne.  The  introduction 
of  feudalism  tended  to  restrict  ancient  English  liberty  and 
produced  changes  in  the  townships  and  hundreds.  Many  free- 
men in  the  townships  became  slaves  or  serfs.  The  area  itself 
often  became  a  manor,  and  the  manorial  courts  of  the  feudal 
lords  absorbed  a  considerable  part  of  the  business  formerly 
transacted  in  the  hunchx-d  court.-  But  the  Norman  and  Plan- 
tagenet  kings  maintained  control  over  the  county  courts,  and 
through  them  protected  the  English  from  encroachments  on  the 
part  of  the  Norman  barons.  To  this  end  they  transferred 
much  of  the  business  which  had  been  transacted  in  the  jwpular 
hundred  court  to  the  county  court.  Thus  they  exalted  the 
shire  as  the  one  rehable  means  of  limiting  the  jjower  of  the  feudal 
chiefs.  The  result  was  that,  in  the  course  of  centuries,  all  the 
functions  of  the  hunched  court  disappeared.'"' 

'  Green,  "History  of  Ihc  liiiKlish  People,"  Vol.  I,  p.  04. 

»  Stubbs,  "The  Constitutional  History  of  EnRlanrl,"  Vol.  I,  p.  273. 

•Lowell,  "The  Government  of  England,"  Vol.  II,  p.  130. 


SOURCES  OF  THE  ENGLISH   CONSTITUTION  415 

Norman  and  Plantagenet  kings  were  probably  not  greatly 
interested  in  the  preservation  of  the  ancient  liberties  of  the 
Enghsh  people,  yet  they  saw  in  the  people's  devotion  to  their 
time-honored  customs  a  means  of  upholding  royal  power  against 
the  attacks  of  their  armed  feudal  chiefs.  The  growth  of  feudal 
power  was  arrested  by  the  king's  sheriffs  and  the  king's  justices 
in  county  courts.  Cases  under  dispute  were  decided  in  favor 
of  the  English  and  the  decrees  of  the  monarch  were  enforced 
with  a  high  hand. 

On  the  death  of  William  I  (1087)  the  people  supported  the 
younger  son,  William,  against  Duke  Robert  of  Normandy,  who 
relied  upon  the  barons.  And  again,  when  William  II  died,  the 
EngUsh,  for  the  better  protection  of  their  local  liberties,  rallied 
to  the  third  son,  who  became  Henry  I  (1100-1135).  Henry  I 
strove  in  many  ways  to  keep  the  support  of  the  Enghsh  people. 
His  general  charter  of  liberties  was  made  the  basis,  a  hundred 
years  later,  of  Magna  Charta.  Boroughs  and  cities  had  been 
strongholds  of  opposition  to  the  new  Norman  nobility.  Henry 
increased  their  independence  by  giving  numerous  charters 
that  insured  the  perpetuation  of  English  liberties.  He  also 
punished  many  Norman  nobles  and  with  their  confiscated 
lands  created  a  new  English  nobihty.  Through  a  small  council 
composed  of  the  new  English  nobles,  the  King  maintained  very 
close  relations  with  the  county  courts.  He  sent  members  of 
this  council  to  visit  each  county  and  there  to  administer  justice 
in  the  King's  name.^ 

Henry  II  (1154-1189),  the  first  of  the  Plantagenets,  con- 
tinued and  developed  the  policy  of  Henry  I.  Through  the 
members  of  his  council,  through  sherilTs,  through  police  and 
military  officers,  whom  he  appointed,  he  kept  in  touch  with 
his  supporters  in  the  counties.  The  county  court,  in  the  mean- 
time, had  lost  much  of  its  earlier  popular  character,  but  Henry, 
through  the  organization  of  the  Jury  system,  maintained  a  part 
of  its  representative  connection  with  the  hundreds  and  boroughs. 
Effective  control  over  the  judiciary,  over  the  police  and  the 
militia,  and  over  a  wider  range  of  financial  resources,  was 
giving  to  the  crown  the  means  for  completely  destroying  the 
independent  power  of  the  nobility.  Under  conditions  then 
existing,   kings  would  have   tended   to   become  absolute   and 

1  Stubbs,  "The  Constitutional  ^listory  of  England,"  Vol.  I,  p.  527. 


4l6  CO]MPAIL\TIVE   FREE   GOVERNMENT 

tyrannical  and  themselves  the  destroyers  instead  of  the  pre- 
servers of  ancient  freedom  had  they  not  been  prevented  by  their 
powerful  nobles. 

Origin  of  the  Charter.  —  The  feudal  lords  were  themselves 
learning  important  lessons  from  the  policy  of  the  king.  It 
was  possible  for  them  also  to  curry  favor  with  the  people  by 
assisting  them  to  preserve  their  local  privileges  against  royal 
encroachment.  The  outrageous  tyranny  of  King  John  (1199- 
12 16)  gave  to  the  barons  their  great  opportunity.  It  should 
be  remembered  that  at  the  accession  of  King  John  there  had 
been  a  full  hundred  years  since  Henry  I  created  a  distinctly 
English  nobility  and  drilled  them  to  habits  of  government 
according  to  ancient  English  custom.  Many  barons  of  Norman 
families  also  had  become  English  in  knowledge  and  sympathy. 
When,  therefore,  John  through  evil  practices  had  turned  all 
classes  of  his  subjects  against  him,  the  barons  were  prepared  to 
take  an  active  part  in  the  formulation  of  Magna  Charta  and 
in  compelling  John  to  sign  it. 

The  Great  Charter  of  Liberties  was  several  years  in  prepa- 
ration. The  bishops  and  the  barons  were  in  possession  of  Henry's 
charter  of  iioo.  This  charter  was  issued  at  a  time  when  men 
still  Uved  who  were  personally  acquainted  with  the  government 
under  the  last  Sa.xon  monarch.  Magna  Charta  is  a  sort  of 
written  constitution  for  the  restoration  of  former  rights  and 
liberties  and  for  the  removal  of  all  present  grievances.  Many 
conferences  were  held  for  its  preparation.  Representatives  from 
counties,  cities,  and  boroughs  consulted  with  the  nobility  and 
clergy.  Thus  in  the  process  of  its  construction  it  was  prophetic 
of  liie  future  method  of  regaining  liberty,  while  in  its  contents 
it  was  a  faithful  catalogue  of  existing  ideals  of  free  govern- 
ment. 

John  had  no  intention  of  submitting,  hut  he  died  before  his 
plans  for  resistance  were  completed.  Henry  III  (1216-1272) 
j)romised  to  observe  the  charter,  but  he  fell  under  the  influence 
of  the  foreign  party  and  drifted  into  a  war  with  the  supporters 
of  the  charier.  During  this  conllicl  both  parties  attemi)ted  to 
strengthen  their  inlluence  with  the  i)eo[)le  by  calling  rei)resenta- 
tives  from  counties  and  boroughs  to  take  council  with  them.  In 
1265,  when  the  King  was  a  ])risoner,  Earl  Simon,  the  leader  of  the 
barons,  called  a  representative  assembly  similar  in  character  to 


SOURCES   OF   THE   ENGLISH   CONSTITUTION  417 

the  later  Model  Parliament  of  Edward  I  in  1295.  In  this  way 
a  new  method  of  approach  is  established  between  the  king's 
government  and  the  people  and  a  new  chapter  is  opened  in  the 
history  of  local  government. 

Factional  Wars.  —  Before  counties  and  boroughs  were  repre- 
sented in  the  central  government,  the  King,  through  his  sheriffs 
and  through  members  of  his  council,  visited  the  counties  and 
administered  justice  and  secured  in  county  court  a  vote  of 
supplies.  A  close  and  intimate  relation  was  thus  maintained 
between  the  central  and  the  local  governments.  But,  when  the 
movement  is  reversed  and  boroughs  and  counties  go  to  the  King, 
that  intimate  relation  is  at  an  end.  No  longer  is  the  stress  of 
conflict  for  the  control  of  counties  and  cities,  but  rather  for  the 
control  of  Parhament.     Local  government  is  neglected. 

County  courts  themselves  were  in  process  of  reorganization. 
The  king's  justices,  who  formerly  presided  over  the  county 
court, ^  had  become  in  a  sense  separated  from  the  older  institu- 
tion. They  held  courts  of  their  own  and  the  counties  became 
simply  geographical  areas  defining  their  jurisdictions.  The 
older  court,  which  in  the  earlier  time  was  composed  of  numerous 
representatives  from  hundreds,  cities,  and  boroughs,  gradually 
fell  into  the  hands  of  local  magistrates,  justices  of  the  peace, 
appointed  by  the  central  government.  These,  with  the  grand 
and  petit  jurors,  were  in  time  united  into  a  Court  of  Quarter 
Sessions.  As  thus  constituted  the  court  lost  its  popular  char- 
acter. The  magistrates  were  appointed  for  life  and  the  eldest 
son  usually  succeeded  the  father.  It  was  a  government  by  a 
local  aristocracy.  The  Court  of  Quarter  Sessions  attended  to 
a  wide  range  of  business,  judicial,  legislative,  and  administrative. 
It  was  in  fact  a  comprehensive  local  government,  for  all  purposes. 
In  boroughs  and  cities  also,  government,  for  the  most  part, 
drifted  into  the  hands  of  a  few  of  the  wealthier  class.  In  both 
borough  and  county  the  franchise  was  much  restricted ;  yet 
the  wealthy  middle-class  folk,  with  little  help  from  king  or 
parliament,  for  centuries  maintained  an  orderly  local  govern- 
ment. Those  who  had  the  franchise  made  their  peace  with 
the  people,  preserving  order,  administering  justice,  and  ful- 
filling local  needs. 

'  After  Henr>'  II  (1154-1189)  members  of  the  King's  court  displaced  tlie  sherifls 
as  presiding  officers  in  the  county  courts. 
2E 


41 8  COMPARATIVE  FREE  GOVERNMENT 

Anarchy  and  confusion  ruled  in  the  central  government. 
Much  of  the  time  there  was  a  disputed  succession  to  the  throne 
and  actual  or  threatened  civil  war.  Yet  the  squirarchy  in  the 
counties  maintained  the  ancient  traditions  of  law  and  order 
for  the  masses  of  the  people.  In  speaking  of  the  Wars  of  the 
Roses  at  the  close  of  this  period,  J.  R.  Green  says :  "  The  ruin 
and  the  bloodshed  were  limited  in  fact  to  the  great  lords  and 
their  feudal  retainers.  Once  or  twice,  as  at  Townton,  the  towns 
threw  themselves  into  the  struggle  on  the  Yorkist  side,  but 
for  the  most  part  the  trading  and  the  industrial  classes  stood 
wholly  apart  from  and  unaffected  by  it.  Commerce  went  on 
unchecked.  The  general  tranquillity  of  the  country  at  large, 
while  feudaUsm  was  dashing  itself  to  pieces  in  battle  after 
battle,  was  shown  by  the  remarkable  fact  that  justice  remained 
wholly  undisturbed.  The  law  courts  sat  quietly  at  Westmin- 
ster ;   the  judges  rode  as  of  old  in  circuit."  ^ 

Political  Interest  Shifts  from  Local  to  Central  Government. 
—  No  important  changes  are  made  in  the  forms  of  government 
in  county  and  city  during  the  fourth  period  under  discussion, 
1485  to  1832  ;  but  there  are  significant  changes  in  the  relation 
of  the  local  organizations  to  the  central  government.  Hitherto 
the  great  service  of  county  and  city  had  been  to  preserve  order 
while  feudal  chiefs  were  at  war.  When  Tudor  monarchs  com- 
pletely subdued  the  unruly  classes,  this  function  was  at  an  end. 
The  Tudors  were  careful  not  to  offend  greatly  the  orderly  classes 
in  town  and  county  though  they  maintained  a  high  degree  of 
royal  power.  The  Stuarts  who  succeeded  them  did  offend  the 
people  represented  in  the  House  of  Commons,  and  after  a  cen- 
tury of  conflict  they  were  driven  from  the  throne.  This  is 
not  the  place  to  describe  the  conflict  between  the  Stuart  rulers 
and  the  House  of  Commons,  but  rather  to  note  some  of  its 
effects  upon  the  local  organization  of  the  people. 

Origin  of  Parties.  —  Religion  was  an  important  factor  in  the 
conflict.  First  the  Englisli  people  were  divifled  into  Catholics 
and  Protestants  and  later  into  Dissenters,  or  Nonconformists, 
anrl  supporters  of  the  Established  Church.  These  differences 
in  Ijelief  had  the  effect  of  greatly  extending  the  scope  of  local 
religious  organization.     Dissenters  maintaincfl  separate  religious 

'  r.rccn,  "Short  History  of  the  KtiKlish  People,"  p.  301.  Cf.  "IIistor>'  of  the 
English  reople,"  Vol.  II,  p.  18. 


SOURCES   OF  THE   ENGLISH   CONSTITUTION  419 

bodies,  and  Church  people  gave  added  attention  to  their  local 
parish  organizations.  Few  people,  as  noted  above,  had  any 
direct  share  in  county  and  town  government.  Many  partici- 
pated in  church  organization  and  practically  all  were  intensely 
interested. 

Moreover,  the  religious  groups  coincided  in  large  measure 
with  the  ancient  divisions  in  the  membership  of  the  House  of 
Commons.  The  House  was  composed  of  representatives  of 
boroughs  and  cities  and  representatives  from  counties ;  that  is, 
of  burghers  and  country  gentlemen.  Dissenting  bodies  were 
mainly  formed  in  towns  and  cities,  while  the  Church  was  largely 
identified  with  the  Squirarchy  in  the  counties.  Religious  con- 
troversy thus  gave  added  emphasis  to  this  ancient  division. 

The  same  cleavage  among  the  people  is  seen  in  the  organization 
of  political  parties,  which  appear  at  the  end  of  the  Stuart 
century.  The  Tory  party  has  always  found  its  chief  support  in 
the  rural  classes  and  the  clergy,  while  the  opposing  party  has 
won  the  adherence  of  Nonconformists  and  industrial  classes  in 
towns.  It  is  true  that  throughout  this  period  there  were  few 
voters  and  local  party  organization  was  very  meager.  Yet,  when- 
ever there  was  a  contested  election,  agents  for  the  rival  candi- 
dates appeared  and  lined  up  the  supporters  of  their  parties.  As 
will  appear  in  a  later  chapter,  the  mob  as  well  as  the  legal 
voters  took  an  active  part  in  contested  elections.  The  masses 
sympathized  with  and  gave  moral  support  to  one  or  the  other 
of  the  rival  parties. 

All  of  these  disturbing  contests ;  the  prolonged  conflict  with 
Stuart  monarchs,  the  division  of  the  people  into  rival  church  or- 
ganizations, the  advent  of  political  parties  with  their  appeal 
for  local  favor,  tended  to  concentrate  attention  on  the  House 
of  Commons  as  the  one  authoritative  representative  institution. 
The  English  people  apparently  lost  all  sense  of  their  dependence 
for  their  liberties  upon  their  ancient  local  institutions.  When 
the  time  came  for  extending  the  franchise,  the  primary  aim  was 
not  the  recovery  of  local  freedom  but  a  more  complete  popular 
control  of  the  central  government. 

In  striking  contrast  with  the  loss  by  the  English  people  of 
a  sense  of  dependence  on  local  institutions  is  the  experience 
of  the  colonists  in  North  America.  At  the  beginning  of  the 
conflict  with  the  Stuart  monarchy,  EngUsh  counties,   towns. 


420  COMPARATIVE  FREE   GOVERKMENT 

and  parishes  were  organized  in  the  New  World.  So  great  has 
been  the  attachment  of  the  people  to  these  institutions  and  so 
profound  has  been  the  sense  of  dependence  upon  them  for  the 
maintenance  of  hberty  that  it  has  been  difficult  to  secure  an 
efficient  central  government.  Americans  escaped  the  central- 
izing tendencies  which  in  their  ancestral  home  finally  localized 
power  in  the  hands  of  a  party  Cabinet  and  a  House  of  Commons. 
Democratic  Municipalities.  —  The  period  since  the  enfran- 
chisement of  1832  will  be  more  adequately  treated  in  future 
chapters  on  local  government  and  on  local  party  organization. 
By  the  acts  of  1834  and  1835,  provision  is  made  for  reorganizing 
city  governments  with  the  use  of  an  enlarged  voting  constitu- 
ency and  also  for  relieving  the  parishes  and  the  Court  of  Quarter 
Sessions  from  the  care  of  the  poor  and  committing  that  business 
to  a  popularly  elected  board.  With  this  modification  the  county 
government  remained  without  further  change  until  the  Act  of 
1888,  creating  popularly  elected  county  councils.  For  more 
than  five  hundred  years  local  magistrates  holding  office  by  life- 
tenure  had  governed  the  counties.  They  governed  by  appoint- 
ment, yet  with  acquiescence  and  common  consent.  At  no 
time  was  there  a  sustained  general  demand  for  a  surrender  of 
their  power.  The  change  came  by  a  voluntary  yielding  of 
power  to  the  new  democracy.  The  agricultural  laborers  had 
just  been  enfranchised  and  the  Tory  party,  the  party  of  the 
squirarchy,  handed  over  to  them  the  privilege  of  electing  their 
local  rulers. 

REFERENCES 

Freeman.     History  of  the  Norman  Conquest,  Vol.  2,  Chap.  III. 

Creen.     History  of  the  Iinf,Hsh  People,  Vol.  I,  Hook  II,  Chap.  III. 

Kemble.     Saxons  in  En^^land,  Vol.  II,  Chaps.  I  to  \'I. 

Lowell.     7 he  Government  of  Enfiland,  1908,  Vol.  II,  Ciiap.  XXXV'III. 

Ogg.     The  Governments  of  Europe,  IQ14,  Chap.  VIII. 

Stubbs.     Constitutional  History  of  England,  Vol.  I,  Chai)s.  III-VI,  XII. 


CHAPTER  XXXIII 

The  Rise  of  the  Cabinet 

In  describing  the  growth  of  the  kingship  in  a  former  chapter, 
httle  notice  was  taken  of  the  immediate  advisers  of  the  monarch. 
The  Cabinet  was  mentioned  as  nominally  fulfilling  the  advisory- 
function  to-day,  while  actually  performing  a  service  in  apparent 
contradiction  to  its  nominal  position.  Like  every  vital  part 
of  the  English  Constitution,  the  Cabinet  did  not  originate  at 
any  one  time  or  place ;  it  simply  grew  out  of  English  history. 
The  Crown  always  commanded  the  services  of  a  body  of  advisers 
and  councilors.  The  Witenagamote,  or  great  council,  met  at 
intervals  and  was  together  for  a  brief  period.  The  smaller 
council  was  always  with  the  monarch  giving  advice  and  admin- 
istering the  laws.  There  was  always  a  tendency  for  the  smaller 
body  to  acquire  distinct  institutional  recognition.  The  curia 
regis  ^  of  Henry  II  for  a  time  filled  the  place  of  the  smaller 
council.  When  the  members  of  the  curia  regis  became  occupied 
in  the  holding  of  the  Common  Law  courts,  other  ofiicers  took 
their  place  in  the  King's  Continual  Council.  As  a  board  of 
regents,  the  smaller  council  actually  governed  England  for  a 
dozen  years  during  the  minority  of  Henry  HI  (1216-1272). 
These  were  the  men  who  had  formulated  Magna  Charta  and 
they  ruled  in  harmony  with  its  provisions.  When  Henry  as- 
sumed control,  he  discarded  the  former  councilors  and  selected 
as  advisers  men  of  the  foreign  party  who  were  opposed  to  the 
provisions  of  the  charter. 

There  was  never  any  clear  line  of  demarkation  between  the 
powers,  functions,  and  duties  of  the  two  councils.  The  King  in 
Council  exercised  all  powers,  legislative,  executive,  and  judicial, 

1  Curia  regis  was  a  name  given  to  a  body  of  high  officers  of  state  associated  with 
the  King  in  the  administration  of  the  laws.  For  its  relation  to  the  Exchequer,  or 
financial  administration,  and  to  the  larger  common  Council  see  Stubbs,  "The  Con- 
stitutional History  of  England,"  Vol.  I,  pp.  376,  387-390 ;  also  Anson,  "  The  Law 
and  Custom  of  the  Constitution,"  Vol.  II,  pp.  10-13,  87. 

421 


42  2  COMPARATIVE  FREE  GOVERNMENT 

whether  the  council  was  large  or  small.  Magna  Charta  specified 
very  expUcitly  that  certain  taxes  should  be  levied  in  full  coun- 
cil. There  was  always  a  tradition  that  acts  of  the  full  council, 
or  Parliament,  carried  with  them  greater  authority  than  the 
acts  of  the  minor  council;  yet  in  practice  this  rule  of  action 
has  never  been  applied  in  such  a  way  as  to  deprive  the  minor 
council  of  a  large  measure  of  power  independent  of,  and  coordi- 
nate with,  the  acts  of  Parhament.  An  order  in  council  to-day 
carries  with  it  equal  authority  with  acts  of  Parhament.  Orders 
in  council  led  the  United  States  to  declare  war  on  England  in 
1812.  This  is  in  apparent  contradiction  to  the  modern  theory 
of  the  complete  sovereignty  of  Parliament.  Yet,  as  lawyers 
say,  whatever  Parliament  permits,  it  sanctions. 

Since  the  days  of  Magna  Charta  there  have  existed  the  two 
rival  methods  of  giving  expression  to  the  sovereign  will.  The 
full  council,  or  Parhament,  has  always  enjoyed  the  greater  weight 
and  authority,  while  the  smaller  council  has  had  the  advantage 
of  being  in  actual  possession  of  the  powers  of  government. 

The  Relation  of  the  Crown  to  its  Ministers.  —  Before  giving 
further  details  in  the  conihcts  l:)ctwecn  these  rival  institutions 
which  have  resulted  in  the  modern  Cabinet,  it  is  well  to  define 
the  English  Crown  and  the  meaning  of  the  phrase,  "  the  King 
can  do  no  wrong."  As  noted  above,  the  English  monarchy  has 
always  been  a  constitutional  state.  No  English  king  could 
ever  dream  of  saying,  "  I  am  the  state."  The  kingship  always 
included,  as  a  part  of  itself,  a  body  of  Ministers  who  were  them- 
selves members  of  the  national  representative  assembly.  The 
smaller  council  was  always  included  in  the  full  council.  The 
sovereignty  was  thus  directly  or  indirectly  linked  to  the  national 
assembly  and  the  Crown  is  a  composite  of  two  elements,  the 
person  and  his  ministers,  or  advisers.  The  person  of  the  mon- 
arch is  sacred.  He  is  held  inviolate.  He  is  the  mystical  foun- 
tain of  justice,  the  source  of  law.  "  The  King  can  do  no  wrong." 
If  the  King's  government  goes  wrong,  the  blame  rests  with  the 
King's  ministers.  It  early  became  an  established  principle 
of  the  Constitution  that  the  Crown  acts  only  upon  advice  of 
ministers  and  that  for  its  acts  the  ministers  are  responsible. 
The  King  cannot  be  punished  ;   ministers  may  be  punished. 

Another  phrase  much  in  use  in  later  political  controversy 
throws  light  u[)()n  the  earlier  conflicts.     "  The  prerogatives  of 


THE    RISE  OF  THE   CABINET  423 

the  Crown  "  denotes  all  the  powers  which  may  be  exercised  by 
the  King  in  Council  without  consulting  the  Houses  of  Parlia- 
ment. The  prerogatives  of  the  Crown  became  pretty  clearly 
defined  and  understood  during  and  after  the  revolutions  of  the 
seventeenth  century.  But  before  that  time  the  monarch 
had  two  distinct  agencies,  Parliament  and  the  Privy  Council, 
through  which  he  could  exercise  his  powers  of  government,  and 
there  was  no  agreement  as  to  their  respective  Hmitations.^ 

King  John  was  forced  to  appoint  twenty-five  barons  whose 
duty  it  was  to  compel  the  King  to  observe  the  charter.^  This  is 
a  striking  exemplification  of  the  difficulty  of  harmonizing 
government  by  a  representative  assembly  with  government  by 
a  King  in  Council.  The  barons  forced  upon  Henry  III,  1258, 
the  adoption  of  a  new  mode  of  government,  the  Provisions  of 
Oxford,  whereby  administration  should  be  placed  in  a  committee 
of  their  own  number.  This  is  another  futile  attempt  to  har- 
monize the  King  in  Parhament  with  the  King  in  Council. 
Again,  twelve  "  Ordainers  "  were  forced  upon  Edward  II  to 
act  as  his  council  of  state.  The  king,  through  the  agency  of 
Parhament,  displaced  the  ordainers ;  but  a  Uttle  later  the  op- 
posing party  deposed  the  monarch.  There  was  continuous 
effort  on  the  part  of  those  opposed  to  the  policy  of  the  govern- 
ment to  exert  a  controlling  influence  over  the  Ministers.  The 
process  of  impeachment  was  instituted  during  the  closing  years 
of  the  reign  of  Edward  III  (1327-1377).  Richard  II  (1377- 
1399)  was  induced  for  a  few  years  to  accept  a  council  from  his 
Parhament.  When  he  reverted  to  a  policy  of  personal  rule  he 
was  deposed  and  the  Duke  of  Lancaster  (Henry  IV,  1399-1413) 
ruled  by  parliamentary  title.  During  the  Wars  of  the  Roses, 
which  resulted  in  the  exclusion  of  the  Lancastrians  from  the 
throne,  the  two  Houses  of  Parliament  were  used  as  a  weapon  of 
warfare.  Alternate  factions  assembled  parliaments  to  complete 
the  destruction  of  their  enemies  by  bills  of  attainder.  Many 
noble  families  were  thus  wiped  out  of  existence  and  their  estates 
confiscated. 

Rule  by  Privy  Council.  —  Early  in  the  Lancastrian  period 
(1399-1461),   the  name  "  Privy  Council  "  came  into  general 

1  Dicey,  "The  Law  of  the  Constitution,"  pp.  392-305;  Anson,  "The  Law  and 
Custom  of  the  Constitution,"  Vol.  II,  p.  2,  seq. 
^Section  61,  Magna  Charta. 


424       COMPARATIVE  FREE  GOVERNMENT 

use  in  place  of  the  older  term,  "  Continual  Council."  ^  From 
the  accession  of  Henry  VII  (1485)  to  the  meeting  of  the  Long 
Parliament  (1640)  the  prerogatives  of  the  Crown  were,  except 
for  brief  periods,  clearly  in  the  ascendant  over  the  two  Houses 
of  Parliament.  England  was  governed  by  the  King  in  Council. 
The  Privy  Council  resembled  in  many  respects  the  modern 
Cabinet.  The  number  of  members  was  usually  about  the  same, 
eighteen  or  twenty.  Privy  Councilors  filled  the  high  offices  of 
state. ^  They  were  members  of  one  or  the  other  of  the  two 
Houses.  Through  his  Council  the  monarch  was  kept  in  close 
touch  with  parliament.  The  King  in  Council  could  create 
peers  ad  libitum  and  could  thus  control  the  House  of  Lords. 
He  could  create  and  destroy  city  and  borough  corporations  and 
thus  maintain  voting  constituencies  loyal  to  the  Crown.  Through 
the  power  of  patronage  and  other  forms  of  bribery,  the  Crown 
controlled  votes  both  in  the  constituencies  and  in  the  two 
Houses  of  Parliament.  Through  these  and  other  agencies 
Henry  VIII  (i 509-1 547)  made  himself  complete  master  of 
Parliament. 

This,  however,  is  but  the  indirect  and  weaker  side  of  royal 
prerogative.  The  King  in  Council  could  exercise  practically 
all  the  powers  claimed  by  the  two  Houses.  There  was,  indeed,  a 
traditional  restraint  in  the  matter  of  direct  taxation,  but  the 
prerogatives  of  the  Crown  furnished  various  means  of  supplying 
the  royal  treasury.  For  eleven  years  preceding  the  Long  Parlia- 
ment, Charles  I  (1625-1649)  ruled  without  Parliament.  Under 
the  name  of  "  Ship  Money  "  he  levied  and  collected  a  general 
tax  and  for  this  policy  secured  the  approval  of  a  majority  in  his 
high  court. 

The  Judiciary  and  Royal  Prerogative.  —  It  was,  however, 
through  the  control  of  tiic  judiciary  that  royal  prerogative 
reached  its  highest  development.  The  King  in  Council  has 
been  from  the  beginning  the  court  of  last  ai:)peal.  From  this 
fact  we  have  the  explanation  of  the  coexistence  of  two  supreme 
courts  to-day.  One  is  the  King  in  the  House  of  Lords,  the 
original  Council,  the  other  is  the  King  in  the  Privy  Council. 
The  other  high  courts  are  the  creation  of  the  King  in  Council. 
Willi  a  few  exceptions  the  courts  have  been   loyal  and  sub- 

'  Stubbs,  "The  Constitutional  History  of  KnKland,"  Vol.  II,  p.  260;  Vol.  TTI, 
p.  245.  ^ There  were  occasional  exceptions  to  this  rule. 


THE   RISE  OF  THE   CABINET  425 

servient  to  their  creator.  Edward  I  brought  his  obstreperous 
bishops  to  submission  by  simply  giving  notice  that  he  would 
withhold  the  protection  of  his  courts.^  Sir  Edward  Coke,  the 
Chief  Justice  of  England,  pronounced  some  of  the  acts  of  James  I 
illegal,  and  for  this  temerity  was  deposed  and  imprisoned. 
Not  only  did  the  Crown  maintain  control  over  the  ordinary 
courts  through  the  power  of  appointment  and  removal,  but,  until 
the  act  of  the  Long  Parliament  denying  the  right,  the  monarch 
had  a  clear  field  for  bringing  into  existence  new  and  arbitrary 
courts  with  practically  unlimited  powers.  Henry  VII,  by  means 
of  his  Star  Chamber,  made  the  higher  nobility  subservient  to 
his  will.  By  fines  and  confiscations  and  arbitrary  exactions  he 
left  a  full  treasury  to  his  successor.  Henry  VIII  failed  to  ob- 
tain a  suitable  decision  from  existing  courts  in  a  matter  of 
divorce  and  he  forthwith  created  a  special  court  to  legahze  his 
predetermined  exchange  of  wives.  By  arbitrary  courts  created 
out  of  hand  by  the  Crown,  royal  power  was  made  complete  over 
Ireland  and  over  large  sections  of  England.  Even  after  the 
acts  of  Parliament  abolishing  the  Star  Chamber  and  other  ar- 
bitrary courts  and  denying  to  the  Crown  the  power  to  set  up  such 
courts ;  after  the  execution  of  Charles  I  and  after  the  restoration 
of  the  monarchy  with  new  promises  and  guaranties  for  respecting 
the  rights  of  Parliament,  the  judiciary  still  remained  an  effective 
tool  of  injustice  and  royal  tyranny.  James  II  (1685-1688) 
experienced  little  difficulty  in  securing  juries  and  judges  in  the 
ordinary  courts  to  execute  his  brutal  and  despotic  orders.  The 
Act  of  Settlement  (1700)  by  depriving  the  Crown  of  the  right 
to  remove  judges  from  office  finally  laid  the  foundation  for  a 
judiciary  free  from  royal  dictation. 

Thus  it  appears  that  from  the  beginning  until  the  Revolution 
of  1688,  the  King  with  the  smaller  council  of  his  advisers  was 
more  than  a  match  for  the  full  Council,  or  Parliament.  Only 
in  revolutionary  times  could  Parhament  force  its  will  upon  the 
Crown.  It  was  Parliament's  fatal  weakness  that  the  monarch 
was  conceded  the  chief  place  in  the  administration  of  law.  Until 
the  conllict  with  the  Stuarts  in  the  seventeenth  century,  the  mon- 
arch was  also  accounted  the  source  of  law.  Even  when  the  two 
Houses  had  established  their  position  as  the  final  authority  in 
lawmaking,  they  could  not  govern  England.      Cromwell  kept 

1  Green,  "  Short  Historj-  of  the  English  People,"  p.  224. 


426  COMPAIL\TIVE   FREE   GOVERNMENT 

order  for  eleven  years,  but  he  did  it  as  an  "  uncrowned  king." 
He  could  not  live  with  a  parliament.  Much  less  could  he  sub- 
mit his  poUcy  to  the  dictation  of  a  parliament.  To  avert 
anarchy  or  irresponsible  despotism,  Charles  II  (i 660-1 685)  was 
called  to  the  throne.  It  was,  however,  still  possible  for  the 
monarch  to  thwart  the  will  of  Parliament,  to  suspend  by  royal 
decree  the  operation  of  its  acts,  to  pack  a  House  of  Commons 
with  royal  supporters  by  creating  new  voting  constituencies 
in  the  boroughs.  The  two  Houses  could  assert  a  theory,  but 
they  could  not  govern.  Even  after  they  had  gone  to  the  limit 
of  declaring  the  throne  vacant,  filling  it  by  an  imported  ruler 
from  Holland  and  enacting  a  Bill  of  Rights  which  specifies  a  full 
list  of  royal  abuses  and  declares  them  all  illegal,  the  problem 
of  government  was  still  unsolved.  The  Crown  was  still  left 
in  full  possession  of  many  high  prerogatives  and  the  formal 
Constitution  was  not  essentially  changed.  Kings  had  never 
been  accustomed  to  pay  much  attention  to  legal  requirements 
forced  upon  them  in  times  of  revolution.  Despite  the  Bill  of 
Rights  and  the  circumstances  of  its  enactment,  government 
might  have  continued  along  the  old  Hnes.  But  there  were 
accompanying  changes  in  the  unwritten  Constitution  which 
mark  the  beginning  of  a  real  revolution.  Important  among 
these  changes  was  one  mentioned  in  a  previous  paragraph,  by 
which  the  Crown  lost  its  control  over  the  judiciary.  James  II 
was  the  last  king  to  make  a  tyrannical  use  of  courts  and  juries. 
By  common  consent  this  ancient  abuse  was  done  away. 

King  Dependent  on  Parliament.  —  Dci:)rived  of  the  aid  of 
the  courts,  the  Crown  became  dependent  on  Parliament  for 
necessary  funds.  James  and  Charles  secured  money  from  Louis 
XIV  of  France,  but  no  succeeding  monarch  had  other  than 
parliamentary  sources  of  supply.  The  Crown  was  thus  continu- 
ously tied  to  the  two  Houses.  Annual  parliaments  became  a 
necessity.'  These  two  changes  made  it  impossible  for  monarchs 
to  continue  to  govern  l^y  the  use  of  a  council  acting  independ- 
ently of  and  in  competition  with  the  two  houses  of  Parliament. 

'  Since  the  Revolution  of  1688  the  policy  of  voting  supplies  for  the  year  has  been 
mriintaincfl,  thus  creatinR  parliamentary  control  over  taxation.  Parliament  es- 
taMishofl  continuous  auth(jrity  over  the  army  by  means  of  the  Mutiny  Act  which 
autliorizes  the  pay  of  ofTicers  and  the  disciplinary  powers  of  the  army  for  only  a 
single  year,  l-lach  of  these  policies  necessitates  annual  Parliaments.  See  Green, 
"History  of  the  English  People,"  Vol.  IV,  pp.  44,  45. 


THE   RISE   OF  THE   CABINET  427 

The  king  and  his  council  thus  became  firmly  anchored  to  the 
legislature.  By  various  acts  of  royal  prerogative  they  might 
influence  or  control  the  action  of  the  houses,  but  they  could  not 
ignore  them  or  override  them  in  the  old  way. 

Before  the  Revolution  of  1688  the  monarch  and  his  ministers 
were  usually  one  in  sentiment  and  purpose,  since  the  king  chose 
ministers  to  execute  his  own  policies.  The  Council,  apart  from 
the  monarch,  had  no  policy,  no  will  of  its  own.  The  modern 
Cabinets,  according  to  legal  forms  and  fictions,  are  still  identified 
with  the  Crown,  though  they  act  upon  their  own  sense  of  re- 
sponsibiUty  to  the  pubhc.  It  is  a  violation  of  the  Constitution 
for  the  monarch  to  intervene  to  thwart  their  will.  The  Cabinet 
has  gained  the  initiative  and  has  become  an  active  part  of  the 
Crown.  The  sovereign  yields  to  the  advice  of  the  Ministers. 
It  was  a  long  time  after  the  exclusion  of  the  Stuarts  before  this 
principle  was  fully  recognized. 

In  its  origin  the  modern  Cabinet  carried  with  it  no  suggestion 
of  a  radical  change  in  the  exercise  of  the  powers  of  the  Crown. 
It  was  always  true  that  the  monarch  had  a  small  number  of 
advisers  upon  whom  he  relied  for  special  guidance.  The  name 
"  cabinet "  as  applied  to  such  a  group  appears  as  early  as  the  time 
of  Charles  I.  Charles  II  had  a  few  ministers  who  became  con- 
spicuous as  his  chief  ministers.  The  "  Cabal,"  as  these  men  were 
called,  is  especially  noteworthy  as  a  group  of  five  ministers  who 
for  a  time  held  high  office  and  filled  the  place  of  king's  council. 
There  were  at  the  time  fifty  or  sixty  men  who  held  the  rank  of 
Privy  Councilor,  too  numerous  a  body  for  use  as  confidential 
advisers.  So  long  as  kings  could  rule  through  a  council  in- 
dependently of  Parliament  they  might  use  a  body  of  considerable 
size  and  thus  add  weight  to  their  government.  But  such  a  body 
is  impractical  when  the  chief  business  in  hand  is  the  securing  of 
Parliamentary  support.  The  Privy  Council  which  had  been  the 
chief  governing  body  for  more  than  two  hundred  years  was 
falling  into  disuse.  There  was  an  effort  to  revitalize  the  Council 
by  forming  out  of  it  a  committee  of  thirty,  half  of  whom  should 
be  members  of  Parliament ;  the  other  half  an  executive  council 
outside  of  Parliament.  Charles  gave  his  assent  to  the  law  and 
then  continued  to  govern  by  secret  advisers,  giving  no  heed  to 
the  statute. 1 

'  Green,  "History  of  the  English  People,"  Vol.  Ill,  p.  426. 


428  COMPARATIVE    FREE   GOVERNMENT 

In  the  same  way  and  for  similar  reasons,  William  III  (1699- 
1702)  ruled  with  the  use  of  a  small  council  or  cabinet.  At 
first  he  selected  members  from  the  three  parties,  Tories,  Trim- 
mers, and  Whigs;  but  finding  that  the  Whigs  were  in  the 
majority  in  the  House  of  Commons,  he  chose  Whig  ministers. 
His  object  was  to  control  Parliament  with  the  least  expenditure 
of  money  or  official  influence.  Later,  when  the  Tories  had 
secured  a  majority  in  the  Commons,  the  King  chose  Tory  minis- 
ters. During  the  reign  of  Queen  Anne  (1702-17 14)  the  minis- 
terial and  party  movements  were  similar.  A  Tory  ministry 
was  followed  by  a  Whig  ministry  and  that  again  by  a  Tory 
ministry,  all  with  reference  to  securing  the  continuous  support 
of  Parliament.  The  House  of  Lords  at  one  time  failed  to  sup- 
port the  Tory  ministry  and  the  Queen  secured  a  majority  by 
creating  twelve  new  peerages.^ 

The  Beginning  of  Conflict  between  Law  and  Constitution.  — 
In  all  this  there  is  little  indication  of  a  radical  change  in  the 
principles  of  government.  The  monarch  was  apparently  still 
in  control  of  the  powers  of  the  Crown.  The  Ministers  were  the 
servants  of  the  Crown.  They  met  in  the  royal  presence  and 
rendered  their  humble  advice.  At  the  death  of  Queen  Anne 
nothing  had  occurred  to  raise  any  question  of  conflict  between 
the  Constitution  and  the  forms  of  law.  It  is  true  that  many 
acts  of  Parliament  were  being  overlooked  or  disregarded ; 
but  it  had  always  been  so.  Not  yet  was  there  any  understand- 
ing or  rule  of  the  Constitution  which  would  make  a  legal  act 
unconstitutional.  A  provision  in  the  Act  of  Settlement  of  1700 
marks  the  beginning  of  a  distinct  separation  of  law  and  con- 
stitution. The  statute  was  contingent  upon  the  advent  of 
another  foreign  ruler  from  the  Continent  ujion  the  death  of 
Queen  .Xnne.  In  that  case  it  was  oriiained  that  all  matters 
"properly  cognizable  in  the  Privy  Council  by  the  laws  and 
customs  of  this  realm,  siuill  be  transacted  there,  and  all  resolu- 
tions taken  thereu[)<)n  shall  be  signed  by  such  of  the  Privy 
Council  as  shall  arivise  and  consent  to  the  same."  ^  Another 
clause  forbade  oflu  e-holders  and  pensioners  of  the  crown  from 
holding  seats  in  ihc  House  of  Commons.  The  object  of  these 
provisions  was  to  put  an  end  to  the  new  custom  of  substituting 

'  /\nson,  "The  L.iw  an<l  Customs  of  Ihc  Constitution,"  Vol.  I,  pp.  192  and  331. 
'  .Xdams  and  Stephens,  "  Select  Documents,"  p.  478. 


THE   RISE  OF  THE   CABINET  429 

a  small  secret  cabinet  in  place  of  the  Privy  Council  and  also 
to  the  method  of  controlling  the  votes  in  the  Commons  by  means 
of  oflfices  and  pensions.  But  the  new  custom  survived  despite 
the  law. 

The  Prime  Minister.  —  This,  however,  of  itself  does  not  make 
a  discrepancy  between  constitution  and  law.  So  long  as  the 
monarch  is  the  recognized  head  of  the  Cabinet  or  smaller  council, 
the  procedure  is  both  legal  and  constitutional  even  though  in 
direct  conflict  with  a  statute.  The  discrepancy  arose  later 
when  a  Prime  Minister  displaced  the  monarch  as  the  head  of 
the  Cabinet,  when  the  Prime  Minister  and  his  associates  held 
meetings  apart  from  the  King,  when  the  poHcies  to  be  followed 
were  agreed  upon  in  secret  Cabinet  meeting  and  the  Prime 
Minister  afterwards  secured  the  approval  and  cooperation  of 
the  monarch.  All  this  took  place  under  the  leadership  of  Robert 
Walpole  during  the  reign  of  George  I  (17 14-1728)  and  the  first 
part  of  the  rule  of  George  II  (17 28-1 760).  Walpole  created 
the  office  of  Prime  Minister,  and  by  means  of  that  office  he  for 
twenty-one  years  maintained  harmonious  relations  between 
the  Crown  and  Parliament.  The  Prime  Minister  and  his  as- 
sociates held  continuous  control  over  the  House  of  Commons, 
using  for  this  purpose  persuasion,  the  bribery  of  office,  money, 
and  influence  or  bribery  among  the  voting  constituencies. 
There  was  a  loyal  and  subservient  House  of  Lords.  At  no  time 
did  Walpole  permit  his  party  or  faction  to  be  defeated  in  the 
House  of  Commons.  Bills  which  he  found  it  convenient  to 
support  in  the  House  of  Commons  in  order  to  gain  favor  with 
the  voters,  though  he  was  unwilling  to  enact  them  into  law,  he 
would  arrange  to  have  defeated  in  the  upper  House.  The  head 
of  the  Cabinet  had  succeeded  in  gathering  into  his  own  hands 
the  effective  powers  of  the  Crown  and  by  means  of  these  con- 
trolled the  two  Houses. 

During  the  twenty-one  years  of  the  continuous  rule  of  the 
first  Prime  Minister  there  is  no  evidence  that  the  monarchs 
were  conscious  of  being  deprived  of  any  of  their  royal  preroga- 
tives. George  I  lived  and  died  under  the  impression,  some 
would  say  under  the  delusion,  that  he  was  himself  exercising 
royal  power. 

Circumstances  and  conditions  favored  this  marked  change 
as  to  the  exercise  of  kingly  authority.     The  first  George  was  a 


43©  COMPAR.\TI\E   FREE   GOVERNINIENT 

foreigner  who  did  not  understand  the  EngUsh  language  and 
for  this  reason  absented  himseh  from  Cabinet  meetings.  Both 
George  I  and  George  II  were  dull  and  easily  imposed  upon. 
The  security  of  their  crown  was  dependent  upon  the  support 
of  the  Whig  party.  During  the  whole  of  the  Walpole  regime 
there  was  a  possibility,  and  some  of  the  time  a  probability,  of  a 
restoration  of  the  Stuarts.  The  situation  gave  opportunity  for  the 
rise  of  the  new  order  of  government.  But  opposition  to  Walpole 
finally  became  serious.  Pitt  and  Chesterfield  led  an  opposing 
faction  of  Whigs  in  the  House  of  Commons,  and  at  last,  in  1742, 
the  majority  for  the  Ministry  was  reduced  to  one  vote  and 
Walpole  resigned. 

There  was  at  the  time  no  Cabinet,  in  the  modern  sense  of  the 
term,  with  its  joint  corporate  responsibility.  Much  less  was 
there  a  Shadow  Cabinet  ready  to  take  office.  The  Prime 
Minister  had  lost  his  majority  and  he  alone  ceased  to  be 
a  minister  of  the  Crown.  Pitt  and  Chesterfield  had  gained  a 
controlling  position  in  the  Commons  by  criticizing  the  Govern- 
ment. The  King  naturally  accepted  their  criticism  as  personal 
and  refused  to  accept  the  obnoxious  statesmen  as  his  Ministers. 
At  the  same  time  the  House  of  Commons  refused  to  support 
a  ^Ministry  unless  Pitt  and  Chesterfield  were  given  office.  Finally 
the  entire  body  of  the  chief  ministers  refused  to  remain  in  office 
unless  Pitt  and  Chesterfield  were  added  to  their  number.  There 
was  at  the  time  a  formidable  rebellion  which  threatened  to 
restore  the  Stuarts  to  power.  The  monarch  was  thus  forced 
to  accept  as  members  of  the  Cabinet  his  personal  and  i)olitical 
enemies.  After  this  event  there  was  no  doubt  of  the  fact  that 
a  new  institution  had  come  into  existence  which,  without 
changing  the  legal,  formal  relations  of  King  and  Council,  does 
in  reality  under  given  conditions  reverse  those  relations.  The 
new  custom,  which  later  becomes  recognized  as  constitutional, 
requires  that  the  monarcn  shall  yield  to  those  who  in  legal  form 
are  his  servants. 

Tory  Reaction.  —  When  George  III  (1760-1820)  came  to 
the  tliroiu-,  the  government  had  been  almost  continuously  in 
the  hands  of  Whigs  since  the  revolution  of  1688.  The  Cabinet, 
which  had  taken  the  place  of  the  Privy  Council  and  had  gathered 
to  itself  a  large  share  of  royal  power,  was  viewed  as  a  Whig 
institution.     George   TIT   had    had   a   Tory    training.     He   ac- 


THE   RISE   OF  THE   CABINET  43 1 

counted  it  his  high  mission  to  regain  the  lost  power  of 
the  Crown.  There  was  no  longer  any  thought  of  a  Stuart  res- 
toration/ and  the  king  had  a  free  hand  to  institute  new  poli- 
cies. During  the  first  decade  there  were  frequent  ministerial 
changes  and  the  King  was  all  the  while  seeking  to  break  up  the 
cabinet  system  and  to  rule  through  ministers  under  his  personal 
direction.  Finally,  in  1770,  he  found  in  Lord  North  a  man 
after  his  own  heart  and  with  Lord  North  as  chief  adviser  he 
ruled  for  eleven  years.  There  was  no  Cabinet  or  Council, 
only  ministers  separately  directed  and  controlled  by  the  king. 
The  American  colonies  were  driven  into  rebellion,  and  England 
was  involved  in  war  with  a  large  part  of  continental  Europe. 
The  personal  rule  of  the  monarch  came  to  an  end  with  the  loss 
of  the  American  colonies  and  the  threatened  ruin  of  the  coun- 
try through  disastrous  foreign  war.  George  was  forced  to 
appoint  a  Whig  ministry  and  a  little  later  he  was  compelled  to 
accept  a  detested  coalition  ministry.  Finally  the  younger 
Pitt  was  induced  to  form  a  ministry  with  the  distinct  under- 
standing that  the  Cabinet  system  of  government  should  again 
be  restored. 

Pitt  had  been  a  Whig,  but  through  a  division  and  realign- 
ment of  parties  he  became  known  as  a  Tory  leader.  Under  his 
leadership  the  Tory  party  became  thoroughly  identified  with 
the  Cabinet  system.  The  theory  of  the  government  was  now 
clearly  defined.  The  Cabinet  was  recognized  as  including  the 
king's  responsible  advisers,  from  whom  alone  was  he  to  seek 
advice.  He  was  at  no  time  to  seek  to  thwart  the  policies 
agreed  upon  with  the  Cabinet,  but  to  give  effect  to  all  such 
measures. 

Neither  George  III  nor  George  IV  (1820-1830)  ever  really 
observed  the  constitutional  requirements  of  the  Cabinet  system. 
They  were  continuously  exerting  an  influence  at  variance  with 
some  part  of  the  Cabinet  program.  In  some  cases  the  king  re- 
fused to  carry  out  a  policy  previously  agreed  upon.  It  became 
increasingly  evident  to  leading  statesmen  of  both  parties  that 
with  an  Upper  House  subject  to  the  direct  control  of  the  Crown 
and  a  Lower  House  subject  to  indirect  influence  and  control  from 
the  same  source,  continuous  Cabinet  government  would  be  im- 
possible.     Either  the  Cabinet  or  the  monarch   would   control 

'  May,  "(Constitutional  History  of  England,"  \'ol.  1,  pp.  35  ff. 


432  COMPARATIVE   FREE   GOVERNMENT 

Parliament  by  royal  prerogative.  In  the  one  case  the  govern- 
ment would  become  an  oligarchy,  in  the  other  it  would  be  an 
irresponsible  monarchy.  As  between  the  two  forms,  personal  rule 
would  prevail.  A  method  of  escape  from  irresponsible  personal 
rule  was  found  in  the  reform  act  of  1832.  By  this  act  a  large 
voting  constituency  was  created  which  was  subject  to  the 
control  of  neither  oligarchy  nor  king.  Through  a  House  of 
Commons,  elected  by  these  voters,  royal  prerogative,  however 
exercised,  became  subject  to  the  will  of  the  nation.' 

The  Cabinet  and  the  House  of  Commons.  —  Enfranchisement 
carried  with  it  as  a  natural  consequence  the  subordination  of 
both  the  Crown  and  the  House  of  Lords  to  the  national  will  as 
expressed  in  the  House  of  Commons.  Only  in  the  Lower  House 
could  the  people  make  known  their  will.  The  leaders  of  the 
Upper  House  perceived  this  result  and  resisted  with  desperation 
the  act  of  enfranchisement.  Their  submission  was  secured  by  a 
threat  emanating  from  the  King  to  create  enough  new  peers  to 
pass  the  bill.  Thus,  among  the  three  parts  of  the  ancient 
government  of  the  King  in  Parliament  the  House  of  Commons  is 
advanced  to  the  place  of  final  authority.  In  the  meantime,  out 
of  the  ancient  body  of  the  king's  ministers,  there  has  been  devel- 
oped a  separate  and  distinct  institution  which  is  above  the 
?Iouse  of  Lords  and,  in  a  sense,  is  a])ove  the  House  of  Commons, 
since  that  House  has  no  way  of  doing  anything  except  as  it 
yields  itself  to  the  guidance  of  the  Cabinet.  It  is  true  the 
House  may  drive  the  Cabinet  out  of  ofBce  by  refusing  to  sup- 
port its  policy.  It  is  likewise  true  that  the  Cabinet  may  dis- 
solve the  House  and  appeal  to  the  voters  to  elect  a  new  one. 
The  electors  mediate  between  the  Commons  and  the  Cabinet. 
Members  are  nominated  and  elected  with  a  distinct  understand- 
ing that  they  will  supj)()rt  the  leader  of  one  of  the  great  parties 
in  the  formation  <il  ;i  Cabinet,  in  the  administration  of  the 
laws,  and  in  the  making  of  new  laws.  The  Cabinet  thus  be- 
comes the  direct  voice  and  expression  of  the  democracy  and 
the  members  of  Parliament  are  chosen  to  give  effect  to  the  prom- 
ises of  party  leaders. 

The  Shadow  Cabinet.  -  The  final  stage  in  the  devi'lopment 
of  the  system  is  reaclietl  in  I  lie  ;i|)|)earance  of  the  institution 
known  as  the  King's  Opposition  or  the  "  Shadow  Cabinet." 
•  WaliKjIc,  "History  of  ICngland,"  0  Vols.,  Vol.  Ill,  pp.  206-244. 


THE   RISE  OF  THE   CABINET  433 

As  noted  above,  the  Whigs  ruled  almost  continuously  from  1688 
to  1760.  From  1760  to  1830  the  Tories  were  in  office  nearly 
all  the  time.  Since  1832  party  leaders  have  changed  places  in 
Parliament,  on  an  average,  every  sLx  years.  There  are  thus 
two  definite  bodies  of  trained  statesmen  actively  engaged  in 
determining  the  policy  of  the  government.  One  of  these 
groups  holds  the  chief  offices  of  the  executive  and  is  responsible 
both  for  lawmaking  and  law  administration.  The  other  group 
is  in  Parliament,  its  members  acting  as  expert  critics  of  the 
government  both  as  to  its  administrative  and  legislative  policies. 
The  system  thus  constantly  conserves  the  experience  of  the 
leading  statesmen  of  both  parties.  The  Cabinet  and  the  Shadow 
Cabinet  are  constantly  engaged  in  discovering  and  revealing 
to  the  democracy  improved  policies  in  government.  There 
are  thus  five  instead  of  three  institutions  involved  in  the  exer- 
cise of  sovereign  authority  in  England.  The  King  and  the  two 
Houses  are  still  nominally  sovereign,  while  real  sovereignty 
has  passed  to  the  people  through  the  instrumentality  of  two 
party  institutions  not  recognized  by  the  laws. 

To  summarize  the  stages  in  the  evolution  of  the  Cabinet: 
I.  There  was  the  inner  circle  of  the  Privy  Council  and  of  the 
earlier  Continual  Council  on  whom  the  king  relied  for  advice 
in  government.  The  name  Cabinet  was  applied  to  this  group 
as  early  as  the  reign  of  Charles  I.  2.  Charles  II  began  to  sub- 
stitute the  inner  circle  in  place  of  the  Privy  Council.  3.  Wil- 
liam III  and  Anne  identified  the  Cabinet  with  party  leaders. 
4.  George  I  absented  himself  from  Cabinet  meetings.  5. 
Robert  Walpole  created  the  office  of  Prime  Minister  which  served 
as  an  entering  wedge  in  the  transfer  of  the  exercise  of  royal 
prerogative  from  the  King  to  the  Cabinet.  6.  The  Cabinet 
supported  by  the  House  of  Commons  forced  George  II  to  give 
Cabinet  places  to  Pitt  and  Chesterfield.  7.  After  George 
III  had  for  twenty-five  years  tried  to  discredit  and  destroy  the 
Cabinet  its  authority  was  restored  under  the  leadership  of  the 
younger  Pitt  as  head  of  the  Tory  party,  thus  committing 
both  parties  to  the  system.  8.  Finally,  beginning  with  the 
act  of  1832,  the  nation  is  becoming  enfranchised,  the  people 
are  recognized  as  the  source  of  final  authority,  there  are  fre- 
quent changes  in  party  rule,  and  the  people  express  their  will 
by  alternate  choice  between   two  competing   Cabinets.     The 


434  COMPAR.\TIVE   FREE   GOVERNMENT 

mechanism  is  such  that  the  people  retain  the  continuous  serv- 
ices of  both  groups,  one  as  actually  governing,  the  other  as 
pointing  out  methods  of  improvement. 

REFERENCES 

Adams  and  Stephens.  Select  Documents  of  the  English  Constitutional  His- 
tory, 1901,  Act  of  Settlement,  p.  475. 

Anson.  Law  and  Custom  of  the  Constitution,  Vol.  I,  Chap.  II,  Vol.  II, 
Chaps.  I  and  III. 

Dicey.     Law  of  the  Constitution,  Edition  1915,  Chap.  XII. 

May.  Constitutional  History  of  England,  Vol.  I,  Chaps.  I  and  II,  Vol.  II, 
Chap.  VIII. 

Medley.  English  Constitutional  History,  Second  Edition,  Revised,  Chaps. 
II  and  VI. 

Ogg.     The  Governments  of  Europe,  Chap.  II. 

Walpole.     History  of  England  Since  181  s,  Vol.  Ill,  Chap.  XI. 


CHAPTER  XXXIV 

The  Relation  of  the  Cabinet  to  the  Executive  and  to 
THE  Judiciary 

The  Cabinet  as  a  whole  arose  from  an  adaptation  of  an  an- 
cient institution  to  meet  changing  needs  and  consequently  a 
number  of  the  offices  included  in  it  are  survivals  of  ancient 
offices.  Significant  among  these  posts  is  that  of  the  Lord 
President  of  the  Privy  Council,  always  a  member  of  the  Cabinet, 
nearly  always  a  peer  and,  since  the  functions  of  the  Council 
have  been  absorbed  by  the  Cabinet,  an  officer  left  practically 
without  duties.  All  Cabinet  members  are  made  Privy  Coun- 
cilors so  that  the  Cabinet  becomes  the  active  Council.^  The 
Board  of  Trade  and  Board  of  Education  originated  as  commit- 
tees of  the  Privy  Council,  and  the  President  of  each  of  these 
boards  is  included  in  the  Cabinet.  The  "  Boards  "  are  mere 
fiction ;  the  Presidents  are  the  boards  and  fill  the  places  of 
Ministers  of  Trade  and  Education  respectively.  As  stated  in 
another  chapter,  a  Committee  of  the  Council  serves  as  the 
Supreme  Court  for  the  Colonies  and  for  the  Established  Church. 
The  Lord  High  Chancellor  is  a  member  of  this  court.  He  is 
also  the  presiding  officer  of  the  House  of  Lords.  The  Chan- 
cellor was  for  centuries  the  most  confidential  adviser  of  the 
Crown,  "  the  keeper  of  the  king's  conscience."  The  duties  of 
the  Chancellor,  both  as  presiding  officer  in  the  Upper  House  and 
as  a  member  of  the  high  courts,  are  non-partisan  in  character, 
though  he  is  a  member  of  a  partisan  Cabinet.  This  office 
exemplifies  the  early  union  of  all  powers  in  the  King  in  Council. 

1  The  Privy  Council  numbers  more  than  200  members,  and  now  consists  of  all 
the  members  of  the  Cabinet ;  all  who  have  been  Cabinet  officers;  most  of  the  chief 
administrative  officers  in  the  departments  of  the  government ;  and  a  large  number 
of  eminent  persons  upon  whom  the  rank  of  Privy  Councilor  is  conferred  as  a  com- 
plimentary distinction.  It  rarely  acts  as  a  whole,  but  performs  its  duties  —  now 
mainly  executive  rather  than  advisory  —  through  numerous  committees.  See 
Anson's  '"Law  and  Custom  of  the  Constitution,"  Vol.  II,  pp.  10O-107,  141-143  ; 
Macy,  "The  Knglish  Constitution,"  p.  86. 

435 


436  CO:\IPARATIVE   FREE   GOVERNMENT 

A  fifth  member  of  the  modern  Cabinet  represents  an  office, 
whose  duties  have  vanished,  the  Lord  Privy  Seal.  When  it 
was  proposed  to  abohsh  the  office,  Mr.  Gladstone  alleged  as  a 
reason  for  continuing  it  the  desirability  of  furnishing  the  Cabinet 
an  additional  councilor  who  might  not  have  the  strength  to 
administer  a  department.' 

Until  the  death  of  Queen  Anne  in  17 14  the  Lord  High  Treas- 
urer had  control  of  finance.  Since  that  date  the  duties  of  the 
office  had  been  assumed  by  the  Chancellor  of  the  Exchequer. 
The  ancient  title  has  been  dropped  and  in  its  place  there  re- 
mains the  First  Lord  of  the  Treasury,  who  is  also  an  officer 
without  duties.  The  Prime  Minister  is  usually  appointed 
First  Lord  of  the  Treasury  -  and  thus  is  secured  to  him  time  and 
energy  for  other  arduous  duties.  Occasionally,  however,  the 
Prime  Minister  prefers  another  office.  Lord  Salisbury  was 
Foreign  Secretary  and  Prime  Minister. 

In  addition  to  the  six  officers  named  above,  the  Cabinet  in- 
cludes the  five  Secretaries  of  State ;  viz.,  those  for  the  Home 
Department,  for  Foreign  Affairs,  for  the  Colonies,  for  War, 
and  for  India.  The  Navy  is  represented  by  the  First  Lord  of 
the  Admiralty.  Ireland  is  represented  either  by  the  Chief 
Secretary  or  by  the  Lord  Lieutenant  of  Ireland.  A  number 
of  other  officers,  such  as  the  Secretary  for  Scotland,  the 
Postmaster  General,  the  Presidents  of  the  Board  of  Agricul- 
ture and  of  the  Local  Government  Board,  the  First  Commis- 
sioner of  Works,  and  the  Chancellor  of  the  Duchy  of  Lancaster, 
may  be  included.  Since  the  year  igoo  cabinets  have  num- 
berefl  twenty  members.  During  the  nineteenth  century  the 
numljer  \aried  from  ten  to  twenty.  The  enlargement  of  the 
("uld  of  goxx-riinient  has  iinok'ed  an  increase  in  the  size  of 
the  Cahiiift. 

Change  of  Cabinets.  Wlien  in  case  of  a  general  elect it)n 
it  becomes  e\ident  that  the  ruling  i)arty  is  defeated,  the  Prime 
Minister  resigns  office  and  the  King  sends  for  the  leader  of  the 
victorious  party  and  requests  him  to  form  a  government.  He 
consults  with  his  immediate  i)arty  associates  and  they  distrib- 
ute among  themselves    the    offices  to  be    rejjresented  in   the 

*  Okr,  "The  (lovtTnmcnts  of  I^uropc,"  p.  (>s,  note  i. 

'Anson,  "The  Law  and  Cuslom  of  Ihu  ConstiliiliDii,"  \'()1.  II,  p.  174  ;  Lowell, 
"The  Government  of  Lngiand,"  VoL  I,  p.  127. 


RELATION   OF   THE   CABINET  TO  THE   EXECUTIVE      437 

Cabinet,  and  a  list  of  the  appointments  to  be  made  is  handed  to 
the  king.  The  press  at  once  announces  the  names  of  the  new 
Cabinet  members  and  the  office  held  by  each.  As  stated  in  a 
formier  chapter,  an  actual  Cabinet  and  a  potential  Cabinet  are 
always  on  duty  in  Parliament.  These  change  places  when  the 
acting  Cabinet  is  defeated  at  an  election.  In  respect  to  many  of 
the  offices  it  is  understood  in  advance  who  wQl  fill  them,  and  the 
work  of  the  Prime  Minister  is  thus  simplified.  The  questions  in 
doubt  as  to  how  many  and  what  officers  shall  be  included  and 
who  shall  be  appointed  to  particular  places  are  decided  by  the 
Prime  Minister  alone  or  in  consultation  with  his  friends.  It  is 
the  aim  of  the  leader  to  make  the  party  strong  in  Parliament, 
strong  with  the  electors,  and  as  harmonious  and  efficient  as 
the  conditions  will  permit.  The  King  has  a  legal  right  to  select 
whom  he  pleases  as  his  ministers  of  state ;  yet  the  well-estab- 
lished rule  of  the  Constitution  requires  him  to  appoint  the 
leader  of  the  triumphant  party  to  the  office  of  First  Lord  of 
the  Treasury,  or  to  whatever  office  he  may  prefer,  and  leave 
to  him  the  distribution  of  all  the  other  positions  in  the  Ministry. 
Besides  the  Lord  Chancellor,  whose  duties  are  mainly  judicial, 
and  three  or  four  sinecures,  the  Cabinet  is  composed  of  about 
sixteen  Ministers  who  are  heads  of  the  chief  departments  of 
the  executive. 

The  Duties  of  the  Cabinet.  —  The  amount  of  executive 
business  in  the  British  government  is  enormous.  Comparison 
with  that  of  the  American  government  helps  to  make  this 
clear.  The  United  States  is  so  situated  as  to  be  comparatively 
exempt  from  the  anxiety  of  a  dangerous  encounter  with  any 
foreign  power.  Military  requirements  are  correspondingly 
slight.  The  situation  of  England  is  such  that  its  continued 
existence  has  been  felt  to  be  dependent  upon  the  maintenance  of 
an  efficient  standing  army  and  a  navy  superior  to  that  of  any 
two  rival  states.  As  to  colonies,  America  owns  islands  with 
less  than  ten  millions  of  inhabitants,  while  England  is  respon- 
sible for  the  government  of  more  than  one  seventh  of  the  human 
race.  In  respect  to  domestic  matters,  the  contrast  is  equally 
striking.  The  Government  at  Washington  has  nothing  to  do 
with  local  government,  except  as  it  concerns  the  District  of 
Columbia,  which  includes  the  national  capital.  Local  govern- 
ment with  the  enlarged  franchise  is  new  in  England  and  the  Local 


438  COMPARATIVE   FREE   GOVERNMENT 

Government  Board  in  fhe  Ministry  is  a  hard-working  depart- 
ment. It  does  for  cities  and  counties  what  is  done  in  America 
by  the  forty-eight  separate  States.  The  Enghsh  habit  of  de- 
pending upon  the  central  authority  for  minute,  detailed  super- 
vision of  local  interests  still  persists  and  places  heavy  burdens 
upon  the  central  office.  Again,  the  entire  police  system  of 
the  country  is  under  the  supervision  of  the  Home  Secretary.^ 
A  few  years  ago,  that  important  official  gave  directions  in  person 
for  the  arrest  of  desperadoes  in  East  London.  Scandal  has 
assailed  a  whole  Cabinet  and  imperiled  its  very  existence  on 
account  of  the  mistake  of  a  policeman  in  arresting  a  respectable 
woman  —  a  local  event  which  would  hardly  make  acceptable 
copy  for  an  American  newspaper. 

The  separate  American  States  assume  the  burden  of  public 
education.  The  federal  government  does,  indeed,  cooperate 
and  assist  in  a  variety  of  ways ;  but  the  general  responsibility 
and  most  of  the  financial  support  is  borne  by  the  States.  In 
the  English  Cabinet  the  President  of  the  Board  of  Education 
is  a  very  important  minister,  and  the  Government  interests 
itself  in  educational  details  in  ways  unknown  in  America.  The 
union  of  Church  and  State,  carefully  repudiated  by  the  founders 
of  the  American  Commonwealth,  gives  rise  in  England  to  two 
rival  systems  of  schools,  l)oth  recognized  and  regulated  by  law, 
and  involving  very  difficult  problems  to  be  dealt  with  Ijy  the 
Minister  of  Education. 

The  onerous  burdens  of  the  EngHsli  Cabinet  are  made  heavier 
by  the  fact  that  those  who  execute  the  laws  are  at  the  same  time 
responsi})le  for  their  existence.  The  blame  for  a  law  which 
works  Jjadly  cannot,  as  in  America,  be  shifted  to  the  shoulders 
of  an  independent  legislature  or,  as  in  some  instances,  a  court. 
The  Government  of  the  day  is  held  responsible  for  retaining 
any  laws  which  are  a  source  of  injustice,  as  well  as  for  the 
formulation  (jf  new  and  needed  projects  of  legislalion.  l'>xecu- 
tive  duties  are  thus  comi)licated.  The  Government  inaugurates 
a  new  policy  in  the  face  of  partisan  rivals  for  office.  The 
Cabinet  incurs  all  the  odium  arising  from  temporary  malad- 
justments due  to  change  of  ])olii  \'. 

'  London  police  are  subject  to  direct  control;  otiicr  police  are  sul)jccl  to  the 
supervision  of  the  central  K')vernmenl.  ■  Lowell,  "  ('lovernmeiit  of  ICiiKland,"  V'ol.  f, 
p.  106. 


RELATION   OF   THE   CABINET   TO   THE   EXECUTIVE      439 

The  Cabinet  has  been  called  a  committee  of  the  Privy  Coun- 
cil, because  it  was  evolved  out  of  and  takes  the  place  of  the 
Council.  It  has  been  called  a  committee  of  Parliament  because 
it  depends  for  its  continued  existence  on  the  support  of  the 
House  of  Commons.  The  Cabinet  is  in  fact  a  self-appointed 
national  party  committee  and  as  a  ruling  party  committee,  it 
formulates  party  policies,  both  legislative  and  administrative, 
and  maintains  its  position  by  securing  party  support  in  ParHa- 
ment  and  among  the  constituencies. 

Ministerial  Responsibility.  —  Each  minister  is  individually 
responsible  for  his  own  department.  If  matters  go  wrong 
with  the  police,  the  Home  Secretary  may  be  criticized ;  if 
diplomatic  dehnquencies  are  charged,  the  Foreign  Secretary 
may  be  blamed.  But  the  Cabinet  as  a  whole  stands  or  falls 
together.  Personal  defects  may  lead  to  a  change  within  a 
Cabinet,  but  this  is  exceptional.  The  body  as  a  whole  is  re- 
sponsible. It  is  compared  to  a  chain  which  is  no  stronger  than 
the  weakest  link.  A  vote  of  censure  directed  against  the  war 
department  would  cause  a  Cabinet  crisis.  Joint  responsibility 
promotes  a  spirit  of  watchfulness  over  all  departments  to  avoid 
hostile  criticism. 

Besides  the  members  of  the  Cabinet,  there  is  in  the  two 
Houses  of  Parliament  a  larger  number  who  are  members  of  the 
Ministry.  Each  of  the  departments  has  a  Parliamentary 
Secretary.  The  war  and  navy  departments  each  have  three 
parliamentary  members  in  the  Ministry,  two  of  whom  are  not 
in  the  Cabinet.  In  the  Ministry  and  not  in  the  Cabinet  are 
four  party  Whips,  a  number  of  officers  of  the  King's  household, 
and  a  few  heads  of  minor  departments.  The  ministry  num- 
bers more  than  fifty  in  all.  These  all  resign  their  offices  with 
the  Cabinet  changes;  all  are  members  of  the  party.  Each 
minister  is  bound  to  vote  with  his  party,  to  apologize  for  and 
defend  the  policies  adopted,  to  seek  in  every  legitimate  way 
to  strengthen  the  party.  Ministers  not  in  the  Cabinet  have  no 
direct  share  in  determining  the  policies  of  the  government.  They 
are  not  consulted,  do  not  share  Cabinet  secrets.  They  are 
salaried  or  paid  adherents  of  the  government.  If  they  cannot 
yield  loyal  support  to  it,  their  duty  is  to  resign.  The  parlia- 
mentary secretary  is  directly  responsible  to  the  head  of  the 
department.     Wlien  the  Cabinet  member  is  a  peer  the  Secre- 


440  COMPARATR'E   FREE   GOVERNMENT 

tary  is  always  in  the  House  of  Commons  and  upon  him  may 
rest  the  chief  burden  of  defending  the  policy  of  the  department, 
though  he  speaks  for  and  on  behalf  of  his  chief  and  not  as  a 
Cabinet  minister.  Some  of  the  departments  always  and  a 
number  of  them  usually  have  a  spokesman  in  each  House,  but 
all  officers  of  the  Treasury  sit  in  the  Commons.^ 

The  members  of  the  ministry  receive  salaries  ranging  from 
£1000  to  £20,000,  but  these  are  practically  all  of  the  salaried 
partisan  positions.  The  public  service  outside  of  Parliament  is 
permanent  and  strictly  non-partisan.  Membership  in  Parlia- 
ment marks  the  distinction  between  salaried  party  supporters 
and  the  officers  who  serve  both  parties  with  equal  loyalty. 
Without  this  sharp  line  of  distinction,  a  democratic  Cabinet 
would  be  difficult  or  impossible.  Previous  to  the  popular  en- 
franchisement Parliament  was  controlled  through  pensions  and 
the  bribery  of  office.  With  the  enfranchisement  came  the 
general  recognition  of  the  principle  that  partisan  appoint- 
ments should  be  restricted  to  the  membership  of  the  two 
Houses.^ 

Permanent  Under  Secretary.  —  The  English  executive  thus 
possesses  some  of  the  qualities  of  a  bureaucracy.  In  each  de- 
partment next  to  the  Parliamentary  Secretary  is  the  Permanent 
Under  Secretary  of  the  Department.  This  officer  is  like  a 
bureaucratic  chief  in  that  he  holds  his  place  on  account  of  his 
ability  as  an  administrator.  He  lives  with  the  department,  is 
familiar  with  its  details,  and  is  acquainted  with  both  the  theory 
and  the  practice  of  administration.  Yet  the  Permanent  Secre- 
tary is  subject  to  the  orders  of  a  parliamentary  Minister.  Some 
of  the  departments  arc  involved  in  heated  partisan  controversy, 
and  the  secretary  is  subject,  with  a  change  of  parties,  to  orders 
from  a  chief  who,  as  a  party  leader,  is  bitterly  opposed  to  a 
law  just  enacted  by  the  defeated  party.  The  Liberals  came' 
into  office  in  1905,  in  large  i)art  because  of  intense  opposition 
to  an  Educational  Act  of  the  Conservative  party.  Because  of 
f)bstruction  in  the  U[)f)er  House,  they  were  unable  to  amend  the 
law  and  it  thus  became  the  duty  of  the  party  to  administer  an 

"  Ix)wdl,  "Thu  (WnxTnmcnl  of  I'.iiKland,"  Vol.  I,  p.  78. 

*  There  remains,  however,  a  limited  amount  of  patronage  which  may  be  used  for 
partisan  purposes,  such  as  the  bestowal  o(  lesser  titles  and  temporary  offices  of  a 
IKTsonal  character.     Ibid.,  Vol.  I,  p.  449. 


RELATION  OF  THE   CABINET  TO  THE    EXECUTIVE      441 

obnoxious  law  which  the  country  had  condemned.  This,  how- 
ever, was  done  in  such  a  way  as  to  avoid  serious  criticism.  It 
is  customary  for  both  parties  to  administer  statutes  which  as 
partisans  they  have  condemned.  The  skilled  under  secretary 
and  the  permanent  service  facihtate  uniformity  of  administra- 
tion in  the  face  of  frequent  changes  in  the  heads  of  departments. 
In  some  cases  it  is  an  administrative  policy  which  becomes  an 
issue  at  a  general  election.  Then  the  victorious  party  may  be 
pledged  to  make  specific  reforms  or  a  radical  change  in  policy. 
In  the  heat  of  partisan  debate,  promises  may  have  been  made 
which  are  difficult  or  impossible  of  fulfillment.  The  permanent 
secretary  then  has  the  dehcate  task  of  saving  the  service  while 
giving  it  the  appearance  of  fulfilling  a  party  pledge  made  with- 
out an  appreciation  of  the  difficulties  involved.  He  needs  to 
be  a  skillful  politician  without  being  a  partisan. 

Non-partisan  Civil  Service.  —  It  is  a  violation  of  one  of  the 
dehcate  rules  of  the  Constitution  to  refer  to  or  to  quote  an 
officer  of  the  permanent  service  in  parliamentary  debate. 
Gladstone  reproved  one  of  his  associates  for  failure  to  observe 
this  rule.^  The  parliamentary  chiefs  are  alone  responsible. 
They  alone  are  to  be  criticized.  It  is  expected  that  the  per- 
manent service  will  remain  absolutely  impartial.  These  offi- 
cials are  not  expected  to  discuss  in  public  the  affairs  of  their 
departments  or  to  give  information  to  others  than  their  supe- 
riors to  be  used  in  public  debate.  A  clerk  in  one  of  the  depart- 
ments was  laboring  day  and  night  to  furnish  information  to  a 
party  leader  to  be  used  in  an  important  debate.  Upon  being 
asked  if  his  department  would  be  equally  alert  in  gathering 
information  for  the  opposition,  his  reply  was,  that  a  request 
coming  from  the  leader  of  the  opposition  would  be  treated  with 
almost  the  same  respect  as  the  one  from  the  party  in  power,  yet 
they  would  be  greatly  surprised  to  receive  a  request  for  statistics 
from  such  a  source  to  be  used  in  a  partisan  way.  This  would 
tend  to  confusion.  The  opposition  understand  this  and  are 
willing  to  wait  until  they  themselves  are  officially  in  command. 
The  leaders  on  both  sides  are  bound  to  respect  and  to  protect 
the  independence  and  the  impartiality  of  the  civil  service. 
Those  in  the  civil  service,  on  the  other  hand,  are  equally  loyal 
to  both  parties.     They  may  vote  at  elections,  but  they  take  no 

'  Lowell,  "The  Ciovernment  of  Kiij^lund."  Vol.  T,  p    igr. 


442  COMPARATIVE  FREE  GOVERNMENT 

other  part  in  politics.  It  is  not  good  form  for  them  to  attend 
poHtical  meetings.  At  least  they  take  no  active  part  in  a  cam- 
paign. 

The  Prime  Minister  and  other  Leaders.  —  There  are  three 
distinct  classes  in  the  public  service.  First  is  the  inner  circle 
of  the  ministry,  the  Cabinet.  Second,  the  non-cabinet  Ministers 
in  Parliament.  These  are  all  identified  with  a  ruhng  party. 
Third,  the  public  oflBcers  not  in  ParUament.  These,  as  officers, 
belong  to  both  parties.  The  Cabinet  itself  is  composed  of  two 
parts,  a  leader  and  his  followers.  The  office  of  Prime  Minister 
is  to  be  thought  of  as  an  institution  quite  apart  from  the  Cabinet 
as  a  corporate  body.  The  Prime  Minister  has  many  duties 
which  are  distinct  from  those  of  other  members  of  the  body. 
The  office  preceded  the  Cabinet  in  the  order  of  development. 
Around  the  chief  Minister  the  Cabinet  has  been  formed.  He 
is  the  president  of  its  meetings,  the  spokesman  for  Cabinet 
policies.  He  is  the  party  disciplinarian.  He  gives  the  final 
word  in  party  disputes.  He  is  the  chief  intermediary  between 
the  Monarch  and  the  Cabinet.  Before  Parliament  and  before 
the  country  his  word,  for  the  time,  carries  the  force  of  supreme 
authority.  The  Prime  Minister  is  kept  from  being  a  despot 
because  he  has  no  authority  except  that  which  is  derived  from 
a  large,  intelligent  voting  body.  By  e.xcelling  others  in  dis- 
cerning and  giving  expression  to  the  will  of  the  nation  he  comes 
to  the  place  of  supreme  power,  and  he  gives  place  to  a  competitor 
when  he  ceases  to  excel  in  leadership.  The  party  chief  and  the 
inner  circle  of  his  associates  secure  and  hold  their  positions  by 
actually  leading  the  party  or  some  section  of  it.  In  this  sense 
they  are  self-ajjpointed,  yet  conditions  may  arise  which  cause 
doubt  as  to  who  shall  be  the  leader.  Within  the  ranks,  as  al- 
ready stated,  doubts  are  solved  by  the  party  chief.  When  the 
leader  himself  vacates  his  office  there  may  be  a  question  between 
two  or  three  associates  as  to  who  shall  iill  the  place.  Salisbury 
succeeded  Beaconslield  without  question  as  leader  of  the  Con- 
servative party,  and  Balfour  succeeded  Salisbury;  but  when 
Balfour  resigned  a  successor  was  not  easily  found.  In  such 
cases  the  leader  is  selected  by  informal  conferences  among  party 
leaders,  or  there  may  be  a  caucus  including  all  the  party  sup- 
|)()rters  in  the  two  Houses  of  Parliament.  If  at  the  time  of 
Cabinet  crisis  there  is  doubt  as  to  leadership,  the  King  may  act 


RELATION  OF  THE  CABINET  TO  THE  EXECUTIVE   443 

upon  his  own  judgment  in  selecting  the  leader  most  likely  to 
harmonize  the  party. 

The  organization  is  normal  when  one  man  is  the  accepted 
party  chief  and  is  Prime  Minister  when  his  party  is  in  office, 
and  leader  of  the  opposition  when  it  is  out  of  office.  The  official 
party  leader  is  the  leader  of  debate  in  the  House  of  which  he  is 
a  member.  In  the  other  House  some  party  member  is  an  offi- 
cially recognized  leader  of  debate.  There  are  thus  two  leaders 
in  each  party.  When  the  chief  leader  is  a  peer  the  leader  in 
the  Commons  holds  a  position  of  almost  equal  importance. 
The  Prime  Minister,  however,  remains  the  official  spokesman 
and  the  disciplinarian  of  the  party.  Normally,  the  official 
leaders  are  the  actual  leaders  of  the  Cabinet ;  yet  not  infre- 
quently other  Cabinet  officers  overshadow  the  official  leaders 
in  commanding  public  attention.^  With  increased  numbers 
in  the  Cabinet  there  is  a  tendency  to  subdivide  that  body  into 
smaller  groups,  four  or  five  of  whom  form  an  inner  cabinet.^ 

Rank  in  the  party  has  no  necessary  association  with  any  par- 
ticular office  in  the  executive.  Even  the  Prime  Minister  may 
select  an  office  other  than  the  traditional  one  of  First  Lord  of 
the  Treasury.  The  Chancellor  of  the  Exchequer  must  be  a 
financier  of  marked  ability.  The  office  of  Lord  High  Chancellor 
goes  to  a  jurist  of  eminence.  But  the  fifty  or  more  places  in 
the  Ministry  are  subject  to  frequent  and  indiscriminate  changes. 
They  are  filled  by  ambitious  men.  Even  when  the  same  party 
is  long  continued  in  office  there  are  frequent  shifts  in  the  dis- 
tribution of  office,  while  a  change  of  party  involves  a  clean  sweep 
of  the  entire  Ministry. 

Party  Rule  and  Administrative  Efficiency.  —  A  standing 
criticism  against  tlie  cabinet  system  is  that  it  places  the  control 
of  the  executive  business  in  the  hands  of  politicians  who  are 
ignorant  of  the  details  of  administration  in  the  departments 
for  which  they  are  responsible.^  The  bureaucratic  character 
of  the  permanent  service  described  above  is  in  part  an  answer 
to  this  criticism.  A  further  answer  is  found  in  the  fact  that  the 
parhamentary  side  of  the  executive  is  likewise,  in  a  sense,  perma- 
nent.    It  is  true  that  the  tenure  is  usually  brief  as  related  to 

*  Joseph  Chamberlain,  in  the  Tory  Cabinet,  and  Lloyd  George,  in  the  Liberal, 
furnish  illustrations. 

2  Lowell,  "The  Government  of  England,"  Vol.  L  P-  50-        ^Ihid.,  Chap.  VTII. 


444  COMPARATIVE   FREE   GOVERNMENT 

any  one  office,  yet  the  holder  of  the  office  has  cither  had  long 
training  in  governmental  business  or  possesses  a  genius  for 
public  affairs.  For  every  place  in  the  Cabinet  there  are  prob- 
ably ten  men  in  Parliament  who  have  seriously  contemplated 
the  possibility  of  attaining  Cabinet  rank.  Membership  in 
Parliament  is  a  career,  a  life  work.  A  young  man  entering 
the  service  naturally  expects  to  come  to  the  front.  To  remain 
in  the  House  of  Commons  he  must  satisfy  a  single  constituency 
of  his  continued  usefulness,  or  he  must  so  commend  himself  to 
the  leaders  of  his  party  that  they  will  secure  for  him  a  new  con- 
stituency in  case  of  need.  Each  of  the  parties  has  numerous 
districts  which  may  be  relied  upon  to  elect  any  one  whom  the 
leaders  nominate.  The  fact  that  there  is  no  residence  require- 
ment makes  it  possible  to  secure  unbroken  service  for  the  supe- 
rior man.  He  demonstrates  his  superiority  by  his  ability  to 
throw  light  on  public  affairs.  Outside  of  the  fifty  who  hold 
office,  there  are  others  who  are  demanding  recognition.  Al- 
ready they  have  made  themselves  familiar  with  the  business  of 
administration.  Their  training  begins  before  the  "  maiden 
speech  "  in  Parliament  and,  subject  to  the  law  of  survival  of 
the  fittest,  it  goes  forward  until  a  position  in  the  inner  circle 
is  reached.  The  heads  of  Departments  have  either  had  ex- 
perience in  subordinate  positions  in  the  ministry  or  have  mani- 
fested conspicuous  ability. 

Yet  after  all  that  may  be  said  by  way  of  mitigation,  the  criti- 
cism still  holds.  To  parcel  out,  in  a  more  or  less  haphazard 
way,  twenty  of  the  high  offices  of  state  does  not  fulfill  the  re- 
quirements of  an  ideal  scientific  administration.  It  does  in- 
volve waste  and  misfits  in  the  association  of  men  with  office. 
The  system,  however,  is  capable  of  yielding  a  high  degree  of 
practical  efficiency  and  it  insures  the  executive  against  serious 
and  long-continued  scandals. 

The  English  and  American  Systems  Compared.  —  It  is  in 
orrler  here  to  refer  briefly  to  the  distinguishing  feature  between 
the  TVesideiitial  and  the  Cabinet  tyj)es  of  government.  The 
American  Stales  and  the  Ceneral  government  of  the  United 
States  were  organizcfl  uj)on  the  theorx-  of  a  separation  of  the 
three  departments.  The  Legislature,  llu-  ivxerulive,  and  the 
Judiciary  arc  made  as  far  as  j)ossil)lc  independent  of  one  an- 
other.     I*".a(h  is  supreme  in  its  own  s|)liere.     No  officer  is  per- 


RELATION   OF   THE   CABINET   TO   THE  JUDICIARY      445 

mittcd  to  serve  at  the  same  time  in  any  two  of  the  departments. 
In  actual  fact,  complete  harmony  between  theory  and  practice 
has  not  been  secured.  The  tendency  has  been  for  the  governors 
of  States  and  the  President  of  the  United  States  to  become 
leaders  in  legislation  as  well  as  executive  chiefs.  The  American 
governor  or  president  as  a  party  leader  may  gain  a  controlling 
influence  over  the  legislature  without  becoming  responsible  to 
it.  The  Executive  is  elected  by  the  people  and  is  responsible 
to  the  people.  The  Cabinet  is  in  a  sense  chosen  by  a  popular 
election,  but  it  is  chosen  for  the  double  purpose  of  making  laws 
and  administering  laws.  It  is  directly  responsible  to  the  House 
of  Commons  whose  vote  may  at  any  tirne  drive  it  out  of  office. 
The  Americans  intended  by  their  constitutions  to  exalt  the 
legislature  and  give  it  an  independent  position.  Present  tend- 
encies are  in  the  direction  of  subordinating  the  legislature 
to  an  independent  executive  leader. 

The  President,  hke  the  Prime  Minister,  selects  his  own  asso- 
ciates in  the  Cabinet,  but  in  this  respect  he  has  a  much  freer 
hand.  Occasionally  a  party  leader  is  so  related  to  the  newly 
elected  President  as  to  command  a  place  in  the  Cabinet,  but  this 
is  exceptional.  In  general,  the  President  may  appoint  any  one 
he  pleases.  He  cannot,  however,  choose  a  member  of  Congress. 
The  Prime  Minister  must  select  members  of  Parliament  and 
must  fulfill  as  far  as  possible  the  reasonable  expectations  of 
every  member  of  his  Cabinet.  There  are  no  surprises  in  the 
ordinary  make-up  of  the  English  Cabinet. 

The  President's  Cabinet  is  not  a  cabinet  at  all  in  the  EngHsh 
sense  of  the  term.  The  relation  of  cabinet  members  to  the 
President  almost  exactly  fulfills  the  ideal  of  George  III,  who  set 
himself  to  destroy  the  English  Cabinet.  The  heads  of  de- 
partments are  independent  of  one  another.  Each  is  directly 
responsible  to  the  President.  There  is  no  joint  or  corporate 
responsibility.  American  Cabinet  authority  is  personal.  The 
Chief  Executive  is  alone  responsible.  He  may  appoint  or  re- 
move members  at  will.  He  may  entirely  disregard  their  ad- 
vice. He  may  seek  and  follow  the  advice  of  whomsoever  he 
pleases.  The  President  is  the  Executive.  If  matters  go  wrong 
in  the  foreign  service,  blame  may  attach  to  the  Secretary,  but 
the  responsibility  is  with  the  President.  Members  of  his  Cabinet 
as  such  have  no  share  in  legislation. 


446  C0MPAR.\T1VK   FREE   GOVERNMENT 

Contrast  also  the  positions  of  the  judiciary  in  the  two  coun- 
tries. It  was  the  intention  of  the  Americans  to  make  the 
courts  not  only  independent,  but  far  removed  from  partisan 
controversy.  Judges  in  most  of  the  States  as  well  as  in  the 
federal  government  were  at  first  appointed  for  life.  As  the 
courts  have  assumed  and  exercised  the  power  to  nullify  acts 
of  the  legislature,  they  have  come  into  political  and  partisan 
controversy.  States  have  very  generally  adopted  the  policy 
of  nominating  and  electing  judges  by  the  same  process  as  other 
poUtical  officers.  In  England  the  courts  were  an  effective  tool 
of  royal  tyranny  until  the  revolution  of  1688,  but  coincident 
with  the  development  of  Cabinet  government,  the  judiciary 
became  entirely  non-partisan.  At  the  same  time  the  Lord 
High  Chancellor,  a  member  of  a  partisan  Cabinet,  presides 
over  the  House  of  Lords  as  a  supreme  court,  is  a  member  of 
the  judicial  committee  of  the  Privy  Council  and  of  other  high 
courts,  appoints  the  judges  in  lower  courts,  and  is  active  in  all 
matters  of  judicial  jjrocedure  and  reform,  while  the  judiciary 
remains  as  completely  out  of  poUtics  as  does  the  permanent 
service  in  the  administrative  departments. 

The  English  Constitution  began  with  all  powers,  legislative, 
executive,  and  judicial,  united  under  the  control  of  the  Crown 
and  an  assembly.  In  its  relation  to  the  monarch  and  to  Parlia- 
ment the  Cabinet  still  exemplifies  the  union,  but  by  common 
consent  one  department,  the  judiciary,  has  come  to  be  treated 
as  independent,  leaving  legislation  and  administration  fused 
together  and  united  under  partisan  control.  The  description 
of  the  relation  of  the  Ministry  to  Parliament  will  follow  an 
account  of  the  organization  of  the  two  Houses. 

kei"i:rences 

Anson.     Law  and  Custom  of  the  Constilution,  Vol.  II,  Chiip.  IV. 

Bagkhot.     The  Kni^li.sli  Conslititthm,  Chap.  II. 

Courtney.     Tlic  Working  of  llir  Consliliilion  of  the  United  Kingdom,  Chap. 

XII. 
Dicey.     The  Imw  of  the  Constitution,  1S15,  ("hap.  II. 
Lowell.     The  Government  of  f-lni^land,  Edition  1908,  Vol.  I,  Cluij)?.  II-X 

and  Chaps.  XVII  and  XVIII. 


CHAPTER  XXXV 

The  House  of  Commons 

The  House  of  Commons  has  been  the  chief  coordinating 
agency  in  the  British  Government.  Beginning  as  a  feeble 
institution  intended  to  enable  the  king  to  increase  his  revenues, 
it  gradually  gained  a  share  in  all  acts  of  legislation.  Henry 
VIII  used  the  lower  House  as  a  means  of  control  over  the  House 
of  Lords.  The  House  of  Commons  was  always  the  one  branch 
of  the  government  having  a  direct  connection  with  a  voting 
constituency.  In  the  name  of  the  people  ParHament  was 
exalted  above  the  Crown.  In  the  name  of  the  people  the 
House  of  Lords  has  been  subordinated  to  the  House  of 
Commons.  The  right  to  vote  for  members  of  the  House 
measures  the  progress  towards  democracy.  By  successive  acts 
of  ParHament  the  elective  franchise  has  been  extended  to 
five  sixths  of  the  male  population  twenty-one  years  of  age, 
and  further  extension  is  under  consideration.  From  every 
point  of  view  the  House  of  Commons  holds  the  place  of 
primary  interest  in  the  present  and  future  government  of  the 
British  Empire. 

To  the  student  of  politics  the  very  center  of  the  British 
Empire  is  the  small,  oblong  room  in  the  Palace  of  Westminster 
known  as  the  House  of  Commons.  It  is  not  an  imposing 
legislative  hall,  for  when  it  was  rebuilt  in  1834  the  pro- 
portions of  the  old  room  were  retained  so  that  no  induce- 
ment should  be  given  to  "  loud-voiced  oratory."  Consequently 
the  benches  can  accommodate  only  about  half  of  the  present 
membership  of  the  House  (670),  and  even  with  the  seats 
reserved  for  members  in  the  side  galleries  they  are  not  suffi- 
cient. From  the  entrance  lobby  a  broad  aisle  leads  up  the 
center  of  the  House  to  the  Speaker's  chair  before  which  stands 
the  table  for  tlie  clerks.  At  the  end  of  this  table  lies  the  mace, 
—  upon  the  table  when  the  House  is  sitting,  on  a  bracket  below 

447 


448  COMPARATIVE   FREE   GOVERNMENT 

when  in  committee.  The  Chairman  of  Committees  occupies  a 
seat  in  front  of  the  Speaker's  chair  when  he  presides  during 
sessions  of  the  Committee  of  the  Whole  House  or  of  the  Com- 
mittee of  Ways  and  Means.  On  either  side  rise  tiers  of  green 
leather-covered  benches,  divided  halfway  down  the  side  of  the 
hall  by  a  narrow  cross  aisle,  called  the  gangway.  At  the  lower 
end  is  another  aisle  beyond  which  is  a  shallow  tier  of  cross 
benches  for  members  and  a  few  visitors.  Under  the  high 
stained-glass  windows  runs  a  gallery,  reserved  on  the  sides  for 
members,  at  the  lower  end  for  strangers,  and  back  of  the  Speaker's 
chair  for  the  press.  Above  the  Press  Gallery  and  behind  a 
heavy  grating  is  the  Ladies'  Gallery,  which  is  technically  out- 
side the  House. 

Composition  of  the  House.  —  The  front  bench  at  the  Speaker's 
right  is  occupied  by  those  Members  of  the  Ministry  who  sit  in 
the  Commons,  and  is  called  the  Treasury  Bench.  On  the  front 
Opposition  Bench  at  the  Speaker's  left  sits  the  "  Shadow 
Cabinet  "  composed  of  the  members  of  the  party  out  of  power 
who  have  held  or  are  expecting  again  to  hold  ministerial  office. 
Thus,  facing  one  another  across  the  table  sit  the  two  party 
leaders  with  their  lieutenants  at  their  sides  and  their  immediate 
supporters  just  behind.  Below  the  gangway  sit  members  less 
closely  bound  to  the  leaders.  Irish  Nationalists  habitually 
occupy  seats  below  the  gangway  on  the  left  even  when  their 
Liberal  allies  are  in  power.  Except  in  this  general  way  no 
scat  belongs  to  a  particular  person,  but  before  "  prayers  "  a 
member  may  reserve  his  seat  for  the  day's  session  by  marking 
it  with  his  card  or  his  hat.  At  question  time  and  when  a  very 
important  debate  is  in  f)rogress  the  House  is  well  filled,  but 
most  of  the  lime  a  comparatively  small  number  of  members 
is  in  actual  attendance.  They  arc,  however,  not  far  distant, 
and  the  sound  of  the  division  bell  or  the  report  that  a  leader  is 
speaking  l)rings  them  Hocking  to  the  House  from  the  committee 
rooms,  the  library,  the  refreshment  rooms,  and  other  parts  of  the 
building. 

Of  the  670  members  who  make  up  the  House  of  Commons 
465  represent  Kngland,  .^o  sit  for  Wales,  72  for  Scotland,  and 
103  for  Ireland.  These  are  elected  lo  represent  counties, 
municipal  and  provincial  jjoroughs,  and  the  universities.  Most 
of  the  Constituencies  now  elect  only  one  member ;  but  twenty- 


THE   HOUSE   OF   COMMONS  449 

three  boroughs,  the  "  City  "  of  London/  and  three  universities, 
—  twenty-seven  constituencies  in  all,  —  elect  two  members 
each. 

Constituencies  vary  greatly  in  size.  The  last  distribution 
of  seats,  that  of  1885,  did  not  pretend  to  make  them  equal, 
and  the  subsequent  shifting  of  population  has  increased  the 
discrepancies.  In  191 2,  the  largest  constituency  was  the 
Romford  division  of  the  county  of  Essex  with  55,951  electors; 
the  smallest,  the  borough  of  Kilkenny  in  Ireland  with  1690. 
Twenty-five  boroughs  in  Great  Britain  and  four  in  Ireland, 
each  have  less  then  five  thousand  electors.  One  two-member 
constituency  and  the  three  universities,  returning  two  members 
each,  have  less  than  ten  thousand  electors.  Five  county  con- 
stituencies in  Great  Britain  and  sixteen  in  Ireland  also  have 
less  than  five  thousand  electors.  In  general,  Ireland  is  over- 
represented,  as  her  population  has  been  decreasing  for  several 
decades,  while  that  of  Great  Britain  is  increasing.^ 

Great  confusion  in  respect  to  the  suffrage  has  been  the 
result  of  the  policy,  extending  over  many  centuries,  of  dealing 
with  the  subject  by  special  acts,  many  of  them  of  local  appli- 
cation. The  qualifications  were  different  for  boroughs  and 
counties,  different  for  the  parUamentary  franchise,  and  for  local 
governments.  The  great  democratic  enfranchisement  began 
with  the  Reform  Act  of  1832  and  was  extended  by  the  Acts  of 
1 86 7  and  18S5,  but  the  confusion  remained.  A  considerable 
number  of  the  adult  male  citizens  are  still  debarred  from  the 
.privilege  of  voting.  On  the  Other  hand,  the  abuse  of  plural 
voting  persisted,  since  unrepealed  ancient  laws  gave  the  fran- 
chise to  property  owners  in  each  district  in  which  they  held 
property. 

The  nomination  and  election  of  members  is  more  fully  de- 
scribed in  the  chapters  on  political  parties.  A  dissolution  of  the 
House  of  Commons  is  followed  at  once  by  the  election  of  a  new 
House.  According  to  the  old  law  several  weeks  are  required 
before  a  newly  elected  House  may  be  organized.  The  voting 
extends  over  a  period  of  two  or  three  weeks.     This  arises  from 

'  The  City  of  London  has  less  than  30,000  inhabitants.  It  is  about  a  mile  square 
and  contains  the  chief  business  iiouses ;  it  is  still  governed  by  the  ancient  merchant 
guilds. 

2  Lowell,    "The   Government   of    England,"   Vol.  I,  pp.   197-201;    King  and 
Raffety,  "Our  Electoral  System,"  Chap.  IV. 
2G 


450  COMPARATIVE  FREE   GOVERNMENT 

the  fact  that  the  Returning  Officer  in  each  district  "  has  a 
choice  of  dates  for  giving  notice  of  the  election,  a  choice,  again, 
in  fixing  the  date  of  nomination,  and  a  further  choice  in  fixing 
the  date  for  the  poll,  a  minimum  and  maximum  number  of 
days  in  each  case  alone  being  prescribed."  ^  The  proposed 
act  designates  a  single  day  for  the  election  of  all  members. 

No  change  is  proposed  in  the  matter  of  residence  requirements 
for  members  of  the  House ;  members  are  not  required,  either 
by  law  or  custom,  to  reside  in  the  districts  which  they  represent. 
Scotsmen  or  men  of  Scottish  descent  usually  represent  Scotch 
districts,  but  they  are  not  required  to  live  in  Scotland.  The 
same  is  true  as  to  Wales  and  Ireland.  There  is  the  greatest 
freedom  in  the  selection  of  representatives  from  all  the  con- 
stituencies. This  fact  has  a  great  influence  on  the  character 
of  the  House.  It  is  possible  for  a  statesman  of  ability  to  choose 
a  parliamentary  career  and  remain  continuously  in  the  House  of 
Commons.  Each  of  the  parties  has  a  number  of  districts  at 
its  disposal,  which  may  be  reUed  upon  to  elect  any  candidate 
whom  the  leaders  may  nominate.  The  laws  provide  for  an 
official  nomination  by  petition  after  due  notice.  If  only  one 
candidate  is  nominated,  the  nomination  itself  is  an  election ;  no 
poll  is  ordered.  Each  of  the  parties  controls  a  number  of  such 
districts.  The  system  makes  it  possible  for  members  of  cabinet 
or  ministerial  rank  to  continue  in  Parliament.  Party  leaders 
usually  represent  districts  which  are  contested,  and  their  re- 
lations to  the  district  are  such  that  even  when  their  party  is 
defeated  they  carry  their  own  districts.  But  if  an  accident 
should  occur  and  the  leader  be  defeated,  he  is  kcj)!  in  office 
by  the  use  of  a  constituency  which  the  party  controls.  This 
system  is  essential  to  tiic  maintenance  of  the  English  type  of 
Cabinet  Government. 

Permanence  and  continuity  in  the  legislative  career  lend  to 
secure  a  high  grade  of  aliilily  in  the  House  of  Commons.  The 
fact  that  a  number  o{  seats  are  to  be  disjjosed  of  by  mere  party 
nomination  has  in  the  past  tended  to  keep  in  the  House  mere 
appointees  of  inlluential  families  who  are  sometimes  men  of 
inferior  intelligence.  Party  rivalry  tends  to  diminish  this 
evil,  for  cai)able  leaders  .seek  the  support  of  followers  of  real 
ability. 

'  King  and  Ruffcty,  "Our  Electoral  System,"  p.  86. 


THE  HOUSE   OF   COMMONS  45 1 

Members  are  elected  for  a  term  of  five  years  or  until  a  dis- 
solution is  ordered.  Since  191 1,  each  member  receives  a  salary 
of  £400  a  year,  except  when  he  is  in  receipt  of  a  salary 
as  an  officer  of  the  House,  as  a  Minister,  or  as  an  officer 
of  His  Majesty's  Household.  Although  members  are  elected 
for  five  years,  they  seldom,  if  ever,^  are  allowed  to  fill  out  their 
term  to  the  close.  A  dissolution,  involving  a  general  election, 
may  occur  at  any  time  and  will  occur  whenever,  in  a  political 
crisis,  the  Cabinet  prefers  an  appeal  to  the  country  to  resigna- 
tion. When  the  end  of  a  term  approaches,  the  Government 
endeavors  to  secure  a  dissolution  at  the  time  most  favorable 
for  their  own  reelection. 

For  a  long  time  Parliament  met  in  annual  session  early  in 
February  and  was  usually  prorogued  in  August ;  but  in  recent 
years  the  limit  has  often  been  extended  in  either  direction.  At 
the  opening  of  the  session  the  Commons  are  summoned  to  the 
bar  of  the  House  of  Lords  to  hear  the  King's  Speech.  The 
Speech  from  the  Throne  outlines  the  Government  poUcy  for 
the  session  as  laid  down  by  the  Ministry.  The  House  then 
prepares  an  Address  in  reply,  the  discussion  of  which  may 
occupy  two  or  three  weeks.  Amendments  to  the  Address  are 
often  moved  expressing  regret  that  certain  matters  were  not 
mentioned  by  His  Majesty,  etc.  An  actually  hostile  amend- 
ment carried  is  equivalent  to  a  vote  of  no  confidence  and  involves 
the  immediate  resignation  of  the  Ministry. 

The  Speaker.  —  The  Speaker  is  elected  by  the  House  and 
confirmed  by  the  King  for  the  life  of  one  Parliament,  but  in 
practice  he  is  always  reelected  as  long  as  he  will  serve,  and  on 
his  retirement  he  is  given  a  peerage.  He  is  chosen  from  the 
ranks  of  the  party  at  the  moment  in  power ;  but  as  soon  as  he 
is  elected  he  is  expected  to  lose  all  partisan  bias  and  to  become 
the  impartial  presiding  officer  of  the  House.  Since  1835  the 
reelection  of  a  Speaker  has  never  been  opposed  and  his  seat  is 
not  usually  contested  at  a  general  election.  In  1895  Mr. 
Gully  was  chosen  Speaker  under  conditions  which  offended  the 
Conservatives.  An  opposing  candidate  contested  his  election 
to  Parliament,  yet  the  Conservatives  in  the  House  reelected 
him  as  Speaker.- 

1  Since  1837  the  longest  term  closed  July,  1865,  and  was  six  years,  seven  months, 
and  six  days.     The  legal  limit  was  seven  years. 

2  Lowell,  "The  Government  of  England,"  Vol.  I,  p.  259. 


452  COMPARATIVE   FREE   GOVERNMENT 

Especially  since  the  introduction  of  new  rules  governing  clos- 
ure and  other  matters  of  parliamentary  procedure  the  powers 
of  the  Speaker  are  very  great.  His  decisions  are  treated  with 
the  utmost  respect  and  from  them  there  is  no  appeal.  His 
disciplinary  powers  include  "  naming  "  a  member  and  even 
his  suspension  from  attendance  in  the  House.  The  right  to 
suspend  a  sitting  in  case  of  grave  disorder  has  occasionally  been 
exercised  since  it  was  granted  to  the  Speaker  in  1902.^  The 
impartial  and  respected  position  which  the  Speaker  holds  is 
well  shown  by  the  agreement  to  leave  with  him  the  delicate 
decision  as  to  what  is  a  money  bill,  and  so  the  power  of  declaring 
what  bills  shall  come  within  the  scope  of  the  Parliament  Act 
of  igii.'  Only  in  the  case  of  a  tie  does  he  cast  a  vote,  and  then 
he  bases  his  decision,  not  uj)on  his  own  opinion  of  the  measure, 
"  but  upon  the  probable  intention  of  the  House  as  shown  by 
its  previous  action,  or  upon  some  general  constitutional  prin- 
ciple." ^  His  whole  position  is  the  exact  opposite  of  that  of  the 
Speaker  in  the  American  House  of  Representatives,  who  is 
himself  a  party  leader,  participates  in  the  organization  of  the 
house,  and  directs  debate  with  the  interests  of  his  own  party 
in  mind,  although  since  the  change  in  the  house  rules  in  iqio 
his  powers  are  diminished. 

Committees.  —  The  presiding  officer,  when  the  House  is  in 
Committee  of  the  Whole,  is  regularly  the  Chairman  of  the 
Committee  on  Ways  and  Means,  called  Chairman  of  Com- 
mittees. He  is  nominated  at  the  beginning  of  a  Parliament  by 
the  Ministry  from  among  their  prominent  supporters  and  serves 
until  they  resign.  Like  the  Speaker,  he  is  expected  to  preside 
in  a  strictly  non-partisan  manner,  and  he  speaks  and  votes  in 
the  House  only  on  questions  that  have  no  political  significance. 
In  the  absence  of  the  Speaker,  he  also  presides  over  regular 
sessions  of  the  House.  Since  1902,  a  deputy  Chairman  has 
been  chosen  in  addition,  to  preside  in  the  ab.sencc  of  the  Speaker 
and  the  Chairman  of  Committees,  so  that  no  interruption  may 
come  to  the  business  of  the  House. 

For  the  dispatch  of  business,  the  House  resolves  itself  into 
three  great  committees  or  one  committee  of  the  Whole  House 

•  A  recent  instance  is  lh;it  in  tlic  luiliinin  of  1012,  when  feeling  was  running  high 
over  the  Home  Rule  Bill.  ^OnK,  "  (jovernments  of  Europe,"  p.  112. 

i<  Lowell,  "The  CJovernment  of  Kngland,"  Vol.  I,  p.  262. 


THE  HOUSE  OF   COMMONS  453 

acting  under  three  names.  The  Committee  of  Ways  and  Means 
considers  all  matters  of  revenue.  The  Committee  of  Supply 
deals  in  detail  with  all  estimates  laid  before  the  House  by  the 
various  government  departments ;  and  revenue  accounts  of 
India  are  reviewed  by  the  Committee  for  India.  The  Com- 
mittee of  the  Whole  House  discusses  the  clauses  of  Government 
and  Private  Members'  Bills  that  are  not  referred  to  Standing  or 
Select  Committees.  In  Committee  greater  freedom  of  debate 
is  possible  than  in  a  regular  session  and  members  may  speak 
on  the  same  question  as  often  as  they  please.  The  Chairman 
of  Committees  presides  when  any  one  of  these  committees  is  in 
session.  When  the  House  is  in  Committee,  the  mace  is  not 
on  the  table,  —  showing  that  the  body  does  not  then  exercise 
full  legislative  powers.  At  the  opening  of  the  session,  Select 
Committees  ^  are  appointed  on  Privileges,  Standing  Orders, 
Selection,  Public  Accounts,  Railway  and  Canal  Bills,  Public 
Petitions,  Police  and  Sanitary  Affairs,  the  Kitchen  and  Re- 
freshment Rooms.  Their  chief  duties  are  indicated  by  the 
names  they  bear.  Fifteen  is  the  usual  number  of  members,  but 
it  may  be  smaller  and,  by  special  leave  of  the  House,  may  be 
made  larger. 

The  Committee  of  Selection  -  is  a  nominating  committee  of 
eleven  members,  chosen  by  the  House  at  the  beginning  of  the 
session.  Its  membership  is  really  determined  by  the  leaders 
of  the  two  parties.  It  is  an  important  body  made  up  of  six 
members  of  the  Government  and  five  of  the  Opposition.  It 
acts  in  a  non-partisan  manner  and  almost  never  divides  along 
party  lines.  This  Committee  appoints  most  of  the  members 
of  the  other  Select  Committees,  also  the  four  great  Standing 
Committees,  described  below,  and  the  Chairman's  panel. 

Nothing  better  illustrates  the  impartial  character  of  these 
Parliamentary  committees  than  the  Chairman's  panel.  This 
panel  of  from  six  to  eight  men  is  chosen  by  the  Committee  of 
Selection  at  the  opening  of  the  session.  The  panel  then  ap- 
points from  among  its  own  number  Chairmen  for  the'  four 
Standing  Committees,  sometimes  called  Grand  Committees. 
The  object  is  to  secure  experience  and  continuity  of  policy  in  the 
presiding  officers.     The  conduct  of  business  in  committee  is 

^Ogg,  "The  Governments  of  Europe,"  p.  124. 
'Lowell,  "The  Government  of  England,"  Vol.  I,  p.  266. 


454       COMPARATIVE  FREE  GOVERNMENT 

very  largely  in  the  hands  of  the  Chairman,  and  upon  his  skill 
and  impartiality  the  success  of  the  system  mainly  depends. 

The  four  Standing  Committees  of  from  sixty  to  eighty  mem- 
bers are  appointed  at  the  beginning  of  the  session.  Every 
bill  that  is  read  a  second  time  and  is  not  sent  to  a  Committee 
of  the  Whole  House  is  referred  to  one  of  these  Committees. 
The  Scottish  Standing  Committee  is  one  of  the  four  and  is 
composed  of  all  the  members  representing  Scottish  constituen- 
cies and  not  more  than  fifteen  other  members  nominated  for  the 
consideration  of  any  bill,  by  the  Committee  of  Selection.  All 
public  bills  relating  to  Scotland  are  referred  to  this  Committee. 
A  Standing  Committee  conducts  its  business  like  a  Committee 
of  the  Whole  House  and  is,  indeed,  a  substitute  for  such  a  com- 
mittee. In  its  organization  and  personnel,  it  reflects  the  va- 
rious points  of  view  of  the  larger  body  and  carries  on  discussions 
in  the  same  way.  It  reports  to  the  House  the  bills  referred  to 
it,  with  or  without  amendments. 

Other  Select  Committees  than  those  nominated  at  the  be- 
ginning of  the  session  are  appointed  by  the  House  to  inquire 
into  special  questions  or  measures  as  they  arise.  Sometimes 
they  are  Joint  Committees  acting  with  an  equal  number  of 
members  of  the  House  of  Lords.  The  Committee  of  Selection 
names  Private  and  Provisional  Order  Bills  Committees  of  four 
members  to  deal  with  individual  bills.  Public  Bills  affecting 
private  interests  are  referred  to  hybrid  committees  api)ointcd 
l)arlly  by  the  House  and  partly  by  the  Committee  of  Selection. 

Parliamentary  Bills.  —  Bills  that  come  before  the  House  are 
divided  into  four  classes,  —  Government,  Private  Members', 
Private,  and  Provisional  Orders  Bills.  First  in  importance 
stand  Government  Bills,  introduced  by  the  Ministry  in  fulfill- 
ment of  promises  made  in  the  Speech  from  the  Throne,  in  Par- 
liament or  on  the  platform.  Such  measures  follow  a  special 
procedure  anri  have  peculiar  facilities  for  being  passed.  But 
any  member  may  introduce  a  bill  dealing  with  public  questions, 
and  these  are  classed  as  Private  Members'  Bills.  They  have  to 
take  their  chances  in  a  ballni  for  places  on  the  calendar,  and 
little  time  is  permitted  for  lluir  consideration.  No  Private 
Members'  Bill  that  is  opposed  by  a  determined  minority  has  a 
chance  of  being  |)assed,  unless  it  isadojjted  by  the  Government. 
The  third  class  is  that  of  Private  Bills  by  which  private  persons, 


THE  HOUSE  OF  COMMONS  455 

companies,  or  local  governments  in  particular  places  are  affected. 
They  often  deal  with  matters  of  local  police,  sanitation,  the 
granting  of  powers  to  municipal  corporations  or  private  com- 
panies for  supplying  public  conveniences,  such  as  gas,  water, 
electric  light,  or  tramways.  Their  passage  through  Parliament 
is  facilitated  by  committees.  The  objects  of  Private  Bills 
must  be  advertised  before  the  bills  are  presented  to  Parliament, 
in  order  that  all  persons  affected  by  their  proposals  may  be 
informed.  In  Parliament  they  must  comply  with  a  large  num- 
ber of  Standing  Orders.  The  real  discussion  of  a  Private  Bill 
takes  place  in  a  Private  Bill  Committee  of  four  members  who 
hear  the  evidence  presented  by  all  persons  affected  by  the  Bill 
and  report  their  decision  to  the  House.  In  most  instances 
the  report  of  such  a  committee  is  accepted  as  final.  In  order 
to  secure  greater  uniformity  in  legislation  on  railways  and 
canals,  all  bills  dealing  with  those  subjects  are  referred  to  one 
large  committee  which  appoints  from  its  own  members  the 
Chairmen  of  separate  committees  of  four  to  deal  with  each  bill. 
A  similar  method  is  followed  in  reference  to  police  and  local 
sanitation.^ 

Provisional  Order  Confirmation  Bills  are  dealt  with  in  the 
same  way  as  Private  Bills,  by  special  committees.^  These  are 
brought  in  by  representatives  of  government  departments 
which  have  issued,  under  statutory  powers,  the  provisional 
orders  requiring  sanction.  They  are  not,  however,  treated  in 
any  sense  as  Government  bills.  Private  and  Provisional 
Orders  Bills  relating  to  Scotland  are  dealt  with  by  a  special 
process. 

Passage  through  Parliament.  — -  The  steps  through  which  a 
Bill  must  pass  before  becoming  law  have  been  numerous  and 
tedious,  but  the  tendency  of  Parliamentary  procedure  as  the 
volume  of  business  increases  is  to  eliminate,  or  at  least  to  make 
purely  formal,  many  of  the  historical  processes.  Discussion  is 
limited  at  the  very  most  to  five  stages. 

1  Private  bills  pertain  to  some  local,  corporate,  or  private  interest.  They  are 
subject  to  a  special  procedure  in  Parliament.  Private  Members'  bills  deal  with 
general  legislation  and  are  like  Government  bills,  except  that  they  arc  introduced  by 
members  not  in  the  Cabinet.  Private  members  may  introduce  Private  Bills,  but 
such  bills  do  not  thereby  become  Private  members'  Bills.  The  distinction  is  in 
the  subject  matter. 

2  Lowell,  "The  Government  of  England,"  \'ol.  I,  p.  384  ct  scq. 


456  COMPARATIVE   FREE   GOVERNMENT 

Important  Government  Bills  are  still  introduced  by  asking 
permission,  and  they  occasionally  are  discussed  at  this  stage. 
The  first  reading  offers  no  chance  for  debate.  On  second  read- 
ing, the  first  real  debate,  —  a  discussion  of  the  general  principles 
of  the  bill,  —  takes  place,  and  then  if  it  is  not  shelved,  the  bill 
goes  either  directly  to  the  Committee  of  the  Whole  or  to  a 
Standing  Committee,  or  is  referred  first  to  a  select  Committee, 
and  then  to  one  of  the  two  former.  In  Committee  the  bill  is 
considered  in  detail  and  may  be  amended  clause  by  clause. 
When  a  bill  has  been  reported,  with  amendments,  from  a 
Committee  of  the  Whole,  and  when  it  has  been  reported,  with 
or  without  amendments,  from  a  Standing  Committee,  it  is  dis- 
cussed in  detail  by  the  House  on  the  report  stage.  Not  only 
the  amendments  made  in  committee,  but  new  ones,  may  then 
be  proposed  and  discussed.  The  third  reading  allows  only 
verbal  amendments  and  discussions  of  the  bill  as  a  whole. 
If  a  bill  passed  in  one  House  is  amended  in  the  other,  it  is 
sent  back  for  consideration  of  the  amendments.  When  agree- 
ment is  reached  between  the  two  Houses,  it  is  ready  for  the 
Royal  Assent.' 

Private  bills  must  be  preceded  by  petitions  and  public  notices 
stating  their  objects.  If  the  preliminary  regulations  have  all 
been  complied  with,  the  bill  then  goes  through  all  the  stages 
of  a  public  bill,  but  in  addition,  if  there  is  opposition,  it  must  go 
through  a  judicial  process  in  a  private  Bill  Committee.  This 
Committee  hears  the  arguments  of  those  who  support  and  those 
who  oppose  the  bill,  amends  it  when  it  thinks  best,  and  reports 
to  the  House,  which  may  emend,  recommit,  or  pass  the  bill 
to  its  third  reading. 

.Although  private  members  are  ])ermille(l  to  bring  in  public 
bills,  their  chances  of  getting  them  through  are  very  small, 
for  the  Government  apjiropriates  to  its  own  uses  every  sitting 
except  the  evening  sittings  on  Tuesdays  and  Wednesdays,  and 
the  sittings  on  Fridays.  Jiul  the  Tuesday  evening  sitting  is 
given  to  the  Government  by  Standing  Order  after  Easter,  and 
the  Wednesday  one  after  Whitsuntide,  and  all  but  the  third 
and  fourth  Fridays  after  Whil  Sunday.  The  Government  also 
often  seizes  even  more  time  by  moving  to  take  the  whole  time 

'  Money  Bills  and  Accounts  follow  a  special  process  and  will  lie  discussed  later. 
Sec  p.  476. 


THE   HOUSE   OF   COMMONS  457 

of  the  House,  before  Ihe  specified  holidays.  In  191 1,  Government 
business,  including  the  time  for  election  of  Speaker,  swearing  in 
of  members,  King's  Speech,  Supply,  etc.,  occupied  a  hundred 
and  sixty-three  of  the  hundred  and  seventy-two  days  in  the 
session,  leaving  nine  full  days  for  some  six  hundred  and  thirty- 
five  members  to  bring  in  their  bills  and  resolutions. 

Limiting  Debate.  —  As  the  length  of  debates  increased, 
and  especially  since  the  systematic  obstruction  by  Irish 
Nationalists  began  in  1880,  some  means  of  limiting  debates 
has  been  found  necessary.  Closure  of  debate,  introduced  in 
1882,  has  been  extended  until  now,  after  a  question  has  been 
proposed,  any  Member  may  move  "  That  the  question  be  now 
put,"  and  unless  the  Chair  considers  the  motion  an  abuse  of  the 
rules  of  the  House  or  an  infringement  of  the  rights  of  the  minority, 
it  is  put  without  amendment  or  debate ;  the  only  requirement 
being  that  it  must  have  the  support  of  at  least  100  votes. 

The  same  rule  has  been  applied  to  Standing  Committees, 
where  twenty  members  may  force  a  closure.  Since  1887,  a 
system  of  "  closure  by  compartment  "  has  gradually  developed, 
by  which  a  certain  amount  of  time  is  allotted  for  the  discussion 
on  various  portions  of  a  bill.  This  method  of  concluding  debate 
is  often  called  "  The  Guillotine,"  because  of  the  inexorable  close 
which  it  brings  to  discussion.  The  system  has  been  further  de- 
veloped by  allocating  time  to  the  various  sections  of  a  Bill  before 
discussion  begins  and  so  avoiding  the  evil  of  allowing  full  debate 
on  the  first  clauses  and  none  on  the  later  clauses  of  a  Bill.  In 
191 1,  a  variation  of  this  system  of  closure  was  introduced  and 
nicknamed  "  The  Kangaroo  Closure."  It  gives  the  Chair  power 
to  choose  out  of  a  selected  group  of  amendments  those  he  holds 
it  most  profitable  for  the  House  to  discuss,  "  and  the  alertness 
and  celerity  of  its  movements  account  for  its  name."  ^ 

Process  of  Voting.  —  Voting  is  carried  on  in  the  following 
manner.  The  Chairman  puts  the  question  to  an  oral  vote  and 
announces  its  result  by  saying,  "  I  think  the  Ayes  (or  Noes) 
have  it."  If  any  member  of  the  minority  challenges  his  de- 
cision, a  division  is  called.  The  clerks  turn  a  two-minute  sand 
glass,  bells  are  rung,  and  "  Division  "  shouted  by  the  police  in 
all  parts  of  the  building.  All  members  who  enter  within  six 
minutes  have  a  right  to  vote  on  the  question.     The  outer  doors 

•  "  Liberal  Yearbook,"  igi3,  p.  8. 


458  COMPARATRT   FREE   GOVERNMENT 

of  the  House  are  then  locked,  the  vote  is  repeated,  and  if  again 
challenged,  two  tellers  are  named  from  each  side  by  the  presiding 
officer.  They  station  themselves  in  the  division  lobbies  at  either 
side  of  the  House  and  the  Members  record  their  votes  by  passing 
through  these  lobbies  where  clerks  record  their  names.  The 
"  Ayes  "  go  to  the  right  of  the  Speaker's  chair  and  leave  the 
House  by  a  door  behind  it ;  the  "  Noes  "  go  to  the  left  and  leave 
by  the  other  end  of  the  room,  and  return  in  reverse  order. 
When  the  lobbies  are  clear,  the  four  tellers  report  the  vote  to 
the  Chairman.  "  A  Member  may  vote  in  a  division,  though 
he  did  not  hear  the  question  put,  but  he  is  not  in  any  case 
obliged  to  do  so,  and  can  remain  in  the  Chamber  while  the 
division  is  in  progress  without  recording  his  opinion."  '  If 
the  Chair  thinks  a  division  frivolously  called  for,  he  may  com- 
mand a  rising  vote  instead. 

When  the  Government  considers  a  question  vital  to  itself. 
Government  whips  are  appointed  as  tellers  and  its  supporters 
are  expected  to  vote  with  the  Government.  The  Opposition 
similarly  indicates  whether  it  considers  the  vote  a  party  matter. 
If  private  members  are  appointed  as  tellers,  any  member  may 
vote  as  he  pleases  without  being  reproached. 

REFERENCES 

Anson.     Law  aiid  Custom  of  llic  ConslUution,  igoi,  Vol.  I. 
liAGKHOT.     The  Enfilisli  Cotislihttion,  Edition  IQ04,  Chaps.  V  and  VI. 
Courtney.     The  Working  ConslUution  of  the  United  Kingdom. 
Dickenson.     The  Development  of  Parliament  during  the  Nineteenth  Century. 
Liberal  Yearbook,  1904,  and  annually  since. 

l.owELL.     The  Government  of  England,  1908,  Vol.  I,  Chaps.  IX-XXII. 
(Jgg.     The  Governments  of  Europe,  Chaps.  IV-VI. 
Pike.     Constitutional  History  of  tlir  House  of  Lords,  1804. 
Redlich.     Thr  Procedure  of  the  House  of  Commons,  three  Vols.,  iqio. 
Tlmi'LE.     f.ifc  in  Parliament, 
loui).     On  Parliamentary  Government  in  England,  ildition  1889. 

'  "  Liberal  Yearbook,"  IQ13,  p.  7. 


CHAPTER  XXXVI 

The  House  of  Lords 

More  venerable  than  the  House  of  Commons,  as  old  as  the 
Crown  itself,  the  House  of  Lords  stands  as  a  monument  to 
English  conservatism.  The  name  came  into  use  when  the  rep- 
resentatives from  counties  and  boroughs  separated  themselves 
from  the  Great  Council  and  formed  the  House  of  Commons ; 
while  the  old  Council  continued  under  the  new  name.  First 
among  western  European  nations  the  English  achieved  a  mon- 
archy with  a  dominant  position,  but  it  was  a  monarchy  which 
could  never  become  absolute  because  there  was  ever  at  hand  a 
council  of  dignitaries  from  whom  the  monarch  received  his 
crown.  Better  than  any  other  institution  the  House  of  Lords 
expresses  the  unbroken  continuity  of  the  government. 

The  Meeting  Place.  —  The  Chamber  of  the  Lords  is  much 
more  imposing  than  that  of  the  Commons,  although  the  general 
arrangement  of  the  two  rooms  is  the  same.  Instead  of  the 
somber  hues  that  prevail  in  the  Commons,  the  Hall  is  rich  with 
gold  and  crimson.  The  Throne  at  the  upper  end  of  the  room 
dominates  all.  Before  it,  in  the  broad  aisle,  is  placed  the  Wool- 
sack, a  not  too  comfortable  seat  for  the  Lord  Chancellor  to 
occupy.  A  few  cross  benches  stand  in  the  broad  aisle  for  peers 
who  have  not  allied  themselves  with  either  party  and  beyond 
them  is  the  table  for  the  clerks  of  the  House.  At  the  lower 
end  of  the  room  beyond  the  Bar,  a  few  seats  and  standing  room 
for  the  public  are  provided.  Peeresses  may  sit  in  the  gallery 
which  runs  round  three  sides  of  the  room.  The  general  ar- 
rangement of  seats  and  of  parties  corresponds  to  that  in  the 
Commons.  The  room  is  larger  and  the  attendance  much  smaller 
than  that  of  the  popular  Chamber,  so  that  the  red-leather 
cushions  are  usually  revealed  in  all  their  glory.  As  in  the 
House,  the  leaders  of  debate  for  the  two  parties  sit  facing  one 
another  on  the  front  benches  at  the  right  and  left  of  the  Lord 

459 


460  COMPARATIVE   FREE   GOVERNMENT 

Chancellor.  Only  a  very  small  proportion  of  the  Ministry, 
especially  in  the  Liberal  party,  sits  in  the  House  of  Lords. 

Composition  of  the  House  of  Lords.  —  The  Lords  Spiritual 
and  Temporal,  641  ^  in  number,  compose  the  Upper  Chamber. 

The  Lords  Spiritual  are  all  Bishops  of  the  Church  of  England 
and  number  twenty-six.  The  Archbishops  of  Canterbury  and 
York,  the  Bishops  of  London,  Durham,  and  Winchester  sit 
by  virtue  of  their  offices,  and  the  twenty-one  senior  Bishops 
also  have  seats.  They  are  members  of  the  House  only  because 
they  are  Bishops,  and  cease  to  be  members  when  they  leave 
their  offices.  Of  the  Lords  temporal,  the  most  important 
and  numerous  are  the  hereditary  peers  of  the  United  King- 
dom from  princes  of  the  blood  royal  down  to  barons.  The 
Scottish  peers  are  represented  by  sixteen  elected  peers,  chosen 
from  among  their  own  number  (31)  for  the  duration  of  one 
Parliament  by  all  the  peers  of  Scotland,  Ireland  is  represented 
by  twenty-eight  peers  who  are  elected  for  life  from  among  the 
Irish  peerage  as  vacancies  occur.  In  1915  there  were  19 
Scotch  peers  without  seats  in  the  House  of  Lords  and  59  Irish 
peers.2  Scotch  peers  who  are  not  elected  to  the  House  of 
Lords  have  no  right  to  be  elected  to  the  House  of  Commons, 
but  Irish  peers  may  be  elected  for  any  constituency  outside  of 
Ireland.  In  order  to  supply  more  legal  talent  for  the  important 
judicial  functions  of  the  House  of  Lords,  Sir  James  Parke  was 
created  a  life  peer  in  1856  ;  but  the  right  of  the  Crown  to  create 
life  peers  was  denied  by  the  House.  In  this  case  the  difficulty 
was  solved  by  giving  Sir  James  an  hereditary  peerage  as  Baron 
Wensleydalc.  In  1876,  however,  two  Ufe  peers,  Lords  of  Appeal 
in  Ordinary,  were  created,  and  the  number  has  since  been  in- 
creased to  four.  They  hold  their  j)osition  and  receive  their 
salaries  like  other  judges  and  also  have  a  right  to  sit  in  the 
House  after  they  have  ceased  to  serve  as  judges. 

The  House  of  Lords  is  popularly  thought  of  as  representing 
mainly  the  ancient  landed  aristocracy  of  the  United  Kingdom, 
and  in  its  sympathies  it  does  so,  yet  only  about  one  fourth  of 
its  members  sit  there  l)y  virtue  of  i)eerages  dating  before  1800. 
In  1830  there  were  400  members  of  the  House  of  Lords,  but  the 
number  has  rapidly  increased.  I'Vom  1830  to  191 1  the  liberal 
ministers  added  to  the  meml)crshi|)  of  tlie  House  286  new  peer- 

'  Correct  (or  uji.\.  '  "The  Statesman's  Yearbook  "  for  1915,  P-  5- 


I 


THE  HOUSE  OF  LORDS  461 

ages,  and  the  Conservative  ministers  181,  sixty-four  of  these 
being  created  by  the  Liberal  Ministry  between  1905  and  191 1. 
This  constant  stream  of  additions  tends  to  change  the  political 
color  of  the  House,  but  it  is  counteracted  by  the  conservative 
traditions  of  the  Lords.  About  four  fifths  of  the  members  of 
the  House  belong  to  the  Conservative  party. 

As  there  is  much  less  business  to  be  transacted  by  the  Lords 
than  by  the  Commons,  their  sittings  are  not  so  long.  The 
House  usually  meets  at  a  quarter  past  four  o'clock  on  the  first 
four  days  of  the  week,  and  does  not  usually  sit  on  Friday  or 
Saturday.  The  sittings  do  not  ordinarily  extend  into  the 
evening.  Attendance,  except  upon  rare  occasions,  is  very  mea- 
ger ;  the  average  is  less  than  fifty.  The  small  number  of  three 
is  necessary  as  a  quorum,  but  no  vote  by  division  can  be  taken 
unless  at  least  thirty  lords  are  present. 

Discipline  and  Procedure.  —  The  Lord  Chancellor,  who  is 
usually  but  not  necessarily  a  peer,  presides  in  debate,  as  Speaker, 
but  without  the  authority  of  the  Speaker  of  the  House  of 
Commons  as  guardian  of  order.  He  does  not  even  decide 
which  of  two  speakers  shall  have  the  floor  and  he  has  no  casting 
vote  in  case  of  a  tie.  The  House  itself  decides  who  shall 
speak,  and  also  maintains  order. ^  A  motion  to  cast  the  duty 
of  deciding  on  points  of  order  upon  the  Lord  Chancellor  and  the 
Lord  Chairman  was  rejected  in  1908.  A  Lord  Chairman  of 
Committees  is  elected  for  the  life  of  a  Parliament  and  is  given 
full  power  to  decide  points  of  order  in  Committee.  He  also 
has  great  influence  over  private  bill  legislation. 

In  general,  procedure  in  the  House  of  Lords  resembles  that 
in  the  Commons.  A  bill  must  pass  through  the  same  stages 
as  in  the  Lower  House,  but  it  is  usually  not  discussed  until  the 
second  reading  when  it  may  be  passed  with  the  understanding 
that  important  amendments  are  to  be  made  in  Committee.  A 
bill  after  passing  the  second  reading  or  after  passing  through 
committee  of  the  Whole  House,  may  be  referred  to  a  Standing 
Committee.  It  is  not  usual  to  oppose  a  bill  on  its  third  reading 
unless  the  majority  at  previous  stages  has  been  so  small  as  to 
leave  the  real  opinion  of  the  House  uncertain,  in  which  case  a 
bill  may  receive  real  opposition  on  the  last  reading  and  may 
even  be  defeated. 

1  Lowell,  "The  Government  of  England,"  Vol.  I,  p.  402, 


462  COMPARATIVE   FREE   GOVERNMENT 

Since  the  Lords  need  to  spend  very  little  time  on  finance 
legislation  and  are  not  eager  to  be  heard  in  debate  for  the  sake 
of  their  constituents,  they  are  not  so  much  pressed  for  time  as 
are  the  Commons  and  they  do  not  need  any  rule  for  closure  of 
debate.  Their  share  in  the  work  of  legislation  is,  however, 
still  far  from  negligible.  In  the  committee  stage  they  often 
whip  into  shape  a  bill  that  has  been  much  mutilated  and  dis- 
torted in  a  contested  passage  through  the  Commons.  Amend- 
ments made  in  either  House  to  a  bill  sent  in  from  the  other  may 
be  accepted,  rejected,  or  modified  by  that  other.  Provision 
is  made  for  conference  in  case  of  serious  disagreement,  but 
such  a  method  of  settlement  has  long  been  wholly  formal  and 
since  191 1  the  will  of  the  Commons  can  be  made  ultimately 
to  prevail.  Opposed  private  bills  are  referred  to  committees 
of  five  members,  nominated  by  the  Committee  of  Selection, 
over  which  the  Chairman  of  Committees  presides.  No  peer 
is  compelled  to  serve  on  such  a  committee,  but  if  he  con- 
sents to  serve,  he  must  attend  during  the  hearing  of  the  whole 
case. 

The  Lord  Chairman  of  Committees  exercises  more  influence 
than  any  other  person  over  all  private  bill  legislation,  for  he 
examines  all  private  bills,  even  before  they  are  read  by  the 
Speaker's  Counsel  in  tlic  House  of  Commons,  and  endeavors 
to  protect  public  interests  and  to  remove  objectionable  clauses 
before  the  bills  come  to  the  Committees.  This  he  does,  not 
through  the  Committees,  but  through  conferences  with  the 
promoters  who  are  practically  obliged  to  comply  with  his  wishes, 
as  the  Lord  Chairman  always  moves  the  third  reading  of  a 
private  bill  in  the  House  of  Lords  and  he  would  refuse  to  act  if 
the  bill  were  not  altered  to  meet  his  advice. 

Because  the  House  of  Lords  is  less  pressed  for  time,  the  Gov- 
ernment sometimes  introduces  a  few  of  its  less  important  meas- 
ures in  that  House,  but  this  can  only  be  done  with  success  by  a 
Conservative  ministry,  since  the  Lords  would  always  amend  a 
Liberal  Government  bill  that  dis[)leased  them,  and  no  time 
would  l;e  gained.  Private  Members'  liills  fare  even  worse, 
since  even  if  such  a  bill  has  been  passed  by  the  Lords,  it  stands 
but  little  chance  of  getting  through  the  Commons  in  the  crowded 
days  toward  the  enrl  of  the  session.  The  result  is  that  of  the 
few  private  Members'  Bills  enacted  each  session  only  about 


THE  HOUSE  OF  LORDS  463 

one  sixth  originate  with  the  peers.  Private  Bills,  however, 
fare  better  in  the  Lords  than  in  the  Commons,  and  the  Private 
Bills  Committees  of  the  Upper  House  are  regarded  with  more 
favor  than  those  of  the  Lower,  because  of  their  greater  ex- 
perience. The  more  leisurely  House  thus  is  really  of  great 
importance  to  the  country  in  respect  to  non-political  measures 
which  are  really  vital  to  the  local  and  general  welfare  of  the 
nation. 

The  House  of  Lords  is  the  remnant  of  that  Great  Council 
of  the  King  which  in  former  days  exercised  nearly  all  the  func- 
tions of  government.  Traces  of  all  its  varied  powers  remain, 
although  its  importance  has  steadily  waned  as  the  power  of  the 
Commons  has  increased.  It  is  still,  however,  the  highest  court 
of  appeal  for  the  United  Kingdom,  except  in  ecclesiastical 
cases.  Any  lord  has  the  right  to  attend  when  the  House  sits 
as  the  Court  of  Appeal,  but  actually  only  the  Law  lords  and 
others  who  have  the  necessary  legal  talent  and  experience  do 
take  part  in  the  Court. 

The  Relation  of  the  Peers  to  the  Commons.  —  As  a  coordinate 
branch  of  the  legislature,  the  House  of  Lords  must  give  its 
assent  to  every  act  of  Parliament  before  it  becomes  law.  Until 
the  passing  of  the  Parliament  Act  in  191 1,  the  real  division  of 
power  between  the  two  Houses  had  not  been  definitely  stated, 
and  repeated  struggles  over  the  passage  of  bills  occurred.  As 
early  as  1671,  the  Commons  asserted  "  That,  in  all  aids  given 
to  the  King,  by  the  Commons,  the  Rate  or  Tax  ought  not  to 
be  altered  by  the  Lords."  The  right  of  the  Lords  to  amend 
financial  bills  was  thus  early  disputed  and  came  gradually 
to  be  discarded,  although  the  right  of  absolutely  rejecting  a 
money  bill  continued  to  be  asserted.  The  dispute  over  the 
paper  duties  Bill  in  i860  led  to  the  inclusion  of  all  taxes  in 
one  great  measure  of  Supply,  which,  it  was  assumed,  the 
Lords  could  not  reject.  The  device  of  "  tacking  "  or  adding 
measures  not  of  a  financial  nature  to  privileged  financial  legis- 
lation has  at  times  been  attempted  by  the  Commons,  but  it 
has  been  dropped  of  late  years,  and  various  devices  for  allow- 
ing the  Lords  to  express  their  will  in  altering  mone)^  bills  have 
been  developed. 

In  iQoq,  however,  the  House  of  Lords  definitely  rejected 
the  annual  Budget  and  created  a  deadlock  in  legislation  which 


464  COMrARATIVE   FREE   GOVERX^^IEXT 

threatened  to  wreck  the  very  parliamentary  system  itself. 
The  general  election  of  January,  19 10,  was  fought  out  very  largely 
on  the  issue  of  the  Lords'  vote,  and  after  the  accession  of  George 
V  (1910-  )  the  second  general  election  of  1910  was  practi- 
cally a  referendum  on  the  Government  and  Opposition  schemes 
for  reform  of  the  Upper  House  so  as  to  limit  its  power.  The 
Government  was  sustained,  and  accordingly  the  Parliament 
Bill  of  191 1  passed  the  House  and  was  submitted  to  the  Lords 
who  passed  it,  rather  than  have  enough  new  peers  created  to 
carry  the  Bill  through.  This  act,  which  had  been  passed  in 
identical  terms  by  the  Commons  in  1910  and  191 1,  recognizes 
that  ultimately  a  reform  in  the  composition  of  the  Upper  Cham- 
ber must  be  effected,  but  provides  for  at  once  removing  the 
absolute  veto  of  the  House  of  Lords.  If  a  Money  Bill  which 
has  passed  the  House  of  Commons  and  has  been  sent  up  to  the 
House  of  Lords  at  least  one  month  before  the  end  of  the  session 
is  not  passed  by  the  House  of  Lords  within  one  month,  it  may 
be  presented  to  ?Iis  ]\Iajesty  for  the  Royal  Assent  and  may 
become  an  Act  of  Parliament  without  the  assent  of  the  Lords. 
The  Speaker  of  the  House  of  Commons  is  empowered  to  decide 
whether  a  Bill  is  a  Money  Bill  and  whether  proposed  amend- 
ments change  its  character  as  a  Money  Bill. 

"  If  any  Public  Bill  other  than  a  Money  Bill  ...  is  passed 
by  the  House  of  Commons  in  three  successive  sessions  (whether 
of  the  same  Parliament  or  not),  and,  having  been  sent  up  to 
the  House  of  I>ords  at  least  one  month  before  the  end  of  the  ses- 
sion, is  rejected  by  the  House  of  Lords  in  each  of  those  sessions, 
that  bill  shall,  on  its  rejection  for  the  third  time  by  the  House  of 
Lords,  unless  the  House  of  Commons  direct  to  the  contrary,  be 
presented  to  his  Majesty  and  become  an  Act  of  Parliament  on 
the  Royal  Assent  being  signified  thereto,  notwithstanding  that 
the  House  of  Lords  have  not  consented  to  the  Bill :  provided 
that  this  provision  shall  not  take  elTect  unless  two  years  have 
ela])sed  between  the  date  of  the  second  reading  in  the  first 
of  those  sessions  of  the  liill  in  the  House  of  Commons  and  the 
date  on  which  it  passes  the  House  of  Commons  in  the  third  of 
those  sessions." ' 

The  Act  also  substitutes  five  for  seven  years  as  the  maximum 
duration  of  a  Parhament. 

' 'I'lic  rarliamcnt  Act,  igii,  2.     George  V. 


THE  HOUSE  OF  LORDS  465 

Relieved  of  the  incubus  of  a  permanently  Conservative  Upper 
House  with  unlimited  powers  of  obstruction,  the  Liberal  Gov- 
ernment can  now  pass  its  Budget  at  once  and  can  put  through 
other  legislation  in  from  two  to  four  years. 

REFERENCES 

(See  References  to  Chap.  XXXV.) 


CHAPTER  XXXVII 

TiiE  Ministry  in  Parliament 

In  the  olden  time  an  English  king  was  accustomed  to  call 
together  the  national  Assembly,  or  Parliament,  and  to  dehver 
before  it  an  address  submitting  for  its  approval  the  policies 
decided  upon  and  asking  for  supplies  to  support  the  government. 
Upon  their  side  the  members  of  the  Assembly  were  permitted 
to  present  petitions  for  redress  of  grievances.  Many  of  the 
old  forms  are  still  followed,  but  the  King's  Speech  with  its  pres- 
entation of  governmental  policy  has  become  the  program  of  a 
political  party.  The  chief  items  in  this  program  have  been 
for  many  months,  and  often  for  many  years,  subjects  of  debate 
between  the  parties ;  some  of  them  have  been  party  issues  in 
the  previous  election,  and  the  victorious  party  comes  to  the 
Parliament  with  a  mandate  from  the  people  to  do  certain  things. 
Months  before  the  meeting  of  Parliament  in  Fe])ruary,  the 
party  leaders  meet  to  agree  upon  measures  which  they  will 
submit  for  the  action  of  Parliament,  and  before  the  session 
opens  the  details  of  the  various  bills  to  be  presented  have 
been  formulated.  The  King's  Speech  is  written  by  the  party 
leaders  and  the  i)r()gram  outlined  is  presented  on  behalf  of  the 
people. 

Relation  to  People  and  Parliament.  —  Each  of  the  ruling 
parties  constantly  lays  claim  to  sujjcrior  wisdom  and  cfTiciency 
in  discovering  and  carrying  out  the  will  of  the  people  in  respect 
to  all  sorts  of  governmental  business.  When  the  people  by 
their  votes  have  given  to  one  party  a  majority  in  the  House  of 
Commons,  the  leaders  then  have  an  opjwrtunity  to  make  good 
their  claim.  At  a  ]xirliamenlary  election  the  voters  have  in 
mind  the  choice  of  a  party  leader  and  his  associates,  who  will 
form  a  Government.  The  i)eople  thus  virtually  elect  the  Prime 
Minister  and  his  Cabinet  by  voting  for  members  of  the  House. 
The  party  is  the  important  factor  in  the  election,  the  individual 

466 


THE  MINISTRY  IN   PARLIAMENT  467 

member  voted  for  being  of  minor  consequence  unless  he  chance 
to  be  a  party  leader  or  one  of  the  inner  circle  who  will  form  the 
Government. 

A  responsible  Ministry,  in  the  EngUsh  sense  of  the  term,  is  a 
body  of  men  who  have  come  into  office  under  certain  pledges, 
promises,  and  expectations.  They  are  responsible  to  the  House 
of  Commons.  With  the  support  of  Parliament  they  exercise 
full  political  power  and  are  also  responsible  to  the  people,  as 
an  account  of  their  stewardship  must  be  given  at  a  general 
election  within  the  five  years  following.  Ministers  may  at  any 
time  ask  for  a  new  mandate  from  the  people,  but  as  long  as  they 
hold  office  their  responsibility  is  complete  because  their  power 
is  supreme. 

Agreement  between  Parties  on  Essentials.  —  The  working 
of  the  party  government  is  greatly  facilitated  by  the  practical 
cooperation  and  agreement  of  the  two  parties  upon  the  great 
body  of  executive  and  legislative  policies.  Only  in  respect  to  a 
few  questions  is  there  at  a  given  time  a  serious  conflict  of  opin- 
ion. The  exigencies  of  partisan  debate,  however,  tend  to 
exaggerate  the  differences,  while  there  is  nevertheless  a  real 
unity  and  cooperation  arising  from  a  common,  intelligent  interest 
in  the  general  welfare  and  a  common  appreciation  of  the  cabinet 
system  as  a  unique  contribution  to  the  cause  of  free  govern- 
ment. Both  parties  believe  in  the  system  and  are  willing  to 
make  sacrifices  for  its  support.  It  was  noted  in  the  chapter  on 
the  executive  duties  of  the  Ministry  that  each  party  is  accus- 
tomed to  accept  in  good  faith  the  deUberate  acts  of  Parliament 
and  faithfully  to  administer  laws  whose  enactment  they  may 
have  strenuously  opposed.  Much  of  the  formal  controversy 
in  the  House  of  Commons  has  an  air  of  unreality.  The  Opposi- 
tion Party  consents  to  assume  the  role  of  "  devil's  advocate  " 
and  to  say  everything  that  can  be  said  against  a  Government 
measure  before  it  goes  into  effect.  The  leaders  of  the  parties 
frankly  cooperate  in  the  formation  of  the  Committees  of  the 
House  and  in  assigning  to  them  the  non-partisan  legislation. 
The  larger  number  of  Government  Bills  pass  into  law  without 
serious  opposition  from  any  quarter.  There  remain,  however, 
a  few  questions  involving  matters  of  peculiar  interest  to  the 
constituencies  or  certain  sections  of  them  on  which  the  parties 
radically  differ. 


468  COMPAFLVTIVE   FREE   GOVERNMENT 

The  Prime  Minister.  —  Nearly  every  member  of  the  House 
is  known  as  an  habitual  supporter  of  the  Government  or  as  a 
supporter  of  the  Opposition,  and  on  each  side  of  the  House  there 
is  one  man  who  speaks  with  the  authority  of  his  party.  On 
the  side  of  the  Government  he  is  the  Prime  Minister,  unless  that 
leader  chances  to  be  a  peer.  With  the  changed  relations  of  the 
two  Houses  following  the  Act  of  191 1,  it  is  Hkely  that  the  Prime 
Minister  will  always  be  in  the  Lower  House,  or  at  least  that 
the  leader  of  the  Government  in  that  House  will  be  chief  leader 
of  his  party.  The  relation  of  the  Prime  Minister  to  the  other 
members  of  the  Cabinet  depends  upon  the  personahty  of  the 
man  and  upon  the  political  issues  dominant  at  the  time.  Other 
leaders  may  be  equally  conspicuous  and  influential  with  the 
official  head  of  the  Government,  but  it  is  the  Prime  Minister 
alone  who  is  in  a  position  to  speak  for  his  party  with  supreme 
authority.  In  like  manner,  the  recognized  leader  of  the  Opposi- 
tion is  the  unquestioned  spokesman  of  his  party. 

The  Cabinet  is  a  thinking  machine  for  the  state.  The  House 
of  Commons  has  been  described  as  an  assembly  having  more 
sense  than  any  one  of  its  members.  The  Cabinet,  as  a  whole, 
ought  to  be  wiser  than  any  leader,  yet  actual  thinking  is  an 
individual  operation,  and  in  each  Cabinet  one  man,  or  a  very 
few  men  do  the  chief  i)art  of  the  guiding  and  directing.  All 
may  give  counsel ;  few  lead.  All  must  sacrifice  individual 
preference,  but  some  much  more  than  others.  If  twenty  men 
must  present  one  mind  to  the  public,  it  is  economy  of  effort  to 
find  an  individual  mind  that  will  meet  the  requirements.  More 
than  half  the  Ministers  are  outside  the  Cabinet  though  they  are 
equally  bound  to  give  loyal  support  to  the  Government.  They 
must  defend  its  policy  when  called  upon  in  Parliament  and  when 
they  address  the  public  they  must  take  pains  to  say  nothing 
which  will  caus(,-  it  embarrassment.  The  responsible  party 
leaders  think  with  the  public  and  for  the  public.  They  reflect 
the  various  shades  of  opinion  in  ihi-  \K\v[y  and  they  are  open  to 
suggestions  from  outside.  Whellier  the  coordinating  and  har- 
monizing of  opinion  wilhin  the  Cabinet  is  the  work  of  one  or 
{;f  many,  the  result  is  ihf  same. 

Political  Problems  and  Party  Issues.  —  The  (|uestions  recog- 
nized as  party  issues  are  those  in  respect  to  which  opposing 
parties    have    already    reached    contradictory    conclusions.     A 


THE   MINISTRY   IN   PARLIAMENT  469 

few  party  issues  become  so  fixed  that  cabinets  are  powerless 
to  change  them.  A  Conservative  Cabinet  must,  for  example, 
defend  the  Established  Church  and  the  existing  social  order. 
There  are,  on  the  other  hand,  several  problems  of  common 
public  interest  which  make  an  identical  appeal  to  the  rival 
parties.  For  example,  the  fight  against  disease  is  non-partisan. 
A  third  class  of  questions  of  great  pubhc  interest  remains  which 
are,  or  may  be,  highly  contentious  in  their  nature,  but  which 
have  not  yet  become  party  issues.  These  furnish  to  party 
leaders  the  real  problem  of  corporate  thinking.  Every  Cabinet 
must  make  up  its  mind  whether  to  espouse  one  side  or  the  other 
of  the  controversy  and  thus  create  a  new  party  issue.  Home 
Rule  for  Ireland  was  for  a  few  years  a  non-partisan  matter; 
then  it  became  partisan  by  the  act  of  a  Liberal  Cabinet.  In 
that  instance,  Gladstone,  the  Prime  Minister,  did  the  thinking 
for  the  Government. 

The  policy  of  free  trade  versus  a  policy  of  protection  and 
especially  the  proposition  to  tax  food,  has  long  been  a  subject 
for  sharp  conflict  in  opinion.  It  was  treated  as  non-partisan 
until  Mr.  Chamberlain,  as  Colonial  Secretary  in  a  Tory  Cabinet 
in  1903,  outlined  a  pohcy  of  imperial  federation  which  involved 
a  tax  on  wheat.  But  Mr.  Chamberlain  was  not  the  authorized 
leader  of  the  Government.  His  utterance,  therefore,  meant 
either  that  the  party  was  already  committed  to  a  policy  involving 
a  tax  on  food,  or  that  there  was  a  divided  Cabinet.  The  Prime 
Minister,  Mr.  Balfour,  assumed  a  tolerant  attitude  towards 
Mr.  Chamberlain's  program,  while  yet  not  wholly  committing 
his  party  to  its  adoption.  For  a  time  the  Cabinet  appeared 
before  the  country  as  having  two  heads,  or  rather  no  head  at 
all.  The  anomalous  situation  was  relieved  by  the  resignation 
of  Mr.  Chamberlain.  The  party,  however,  was  rapidly  be- 
coming committed  to  the  policy  of  protection.  After  the 
Liberals  had  returned  to  office  in  1906,  Mr.  Bonar  Law,  a  noted 
protectionist,  was  made  the  leader  of  the  opposition.  In  a 
public  address  he  definitely  pledged  his  party  to  a  tax  on  wheat, 
in  case  the  colonies  should  wish  such  a  tax.  There  was  an 
immediate  agitation  among  his  supporters  in  the  House  of 
Commons ;  the  members  were  hearing  from  their  constituents. 
A  paper  was  signed  by  nearly  every  private  member  in  the 
House,  defining  the  party  position  on  the  pohcy  of  protection 


470  COMPAIL\TIVE   FREE   GOVERNMENT 

in  such  a  way  as  to  exclude,  for  the  time  at  least,  a  tax  on  food. 
These  facts  exhibit  with  unusual  distinctness  the  English  meth- 
ods for  attaining  party  harmony  upon  a  new  and  divisive  issue. 
The  Liberals  had  a  similar  experience  in  deaUng  with  the  ques- 
tion of  women's  suffrage.  Cabinet  officers  were  known  to  hold 
opposing  views  on  the  subject.  Promises  were  made  to  the 
suffragists  which  could  not  be  fulfilled.  To  conciliate  those 
who  were  offended  the  Cabinet  promised  to  give  the  right  of 
way  to  a  private  bill  granting  the  vote  to  women. 

It  is  apparent  that  the  real  balance  of  the  Constitution  comes 
more  and  more  to  rest  with  the  two  ruling  parties  in  their 
attitude  towards  the  conflicting  and  divisive  interests  of  the 
public.  The  parties  are  the  two  eyes  which  enable  the  state 
to  see  the  two  sides  of  important  questions;  the  two  hands 
which  may  work  together  to  fulfill  accepted  common  needs; 
the  two  feet  enabling  the  body  pohtic  to  advance  step  by  step. 
There  is  a  constant  shifting  of  support  from  one  party  to  the 
other  in  the  outside  public,  and  this  tendency  is  reflected  in  the 
House  of  Commons. 

The  Relation  of  Leaders  to  their  Supporters.  —  Within  the 
House  leaders  and  foUowers  act  and  react  upon  one  another, 
while  the  opposing  parties  maintain  a  continuous  duel.  On 
the  Government  side  three  distinct  elements  appear,  the  Cabinet, 
the  Ministers  not  in  the  Cabinet,  and  the  private  members. 
The  Cabinet  alone  determines  the  policy,  the  other  ministers 
being  only  official  and  salaried  supporters.  The  entire  Ministry, 
however,  acts  as  a  unit ;  its  members  stand  or  fall  together. 
The  private  members  of  Parliament  who  usually  support  the 
Government  are  the  ones  to  determine  whether  the  Ministry 
shall  stand  or  fall.  If  the  Government  has  a  majority  of  a 
hundred,  fifty  members  may  cause  a  cabinet  crisis  by  voting 
with  the  Opposition.  Yet  the  fifty  who  thus  act  cannot  govern. 
They  cither  make  themselves  subject  to  the  leaders  of  the  other 
party  or  they  secure  a  new  election  which  may,  perchance, 
change  the  policy  of  their  own  party.  On  all  party  questions, 
the  Ministry  usually  has  against  it  the  entire  opposition  party, 
and  on  some  of  the  parly  issues  it  may  incur  the  opposition  of 
some  of  its  habitual  sup])orters.  The  determinate  action  of  the 
House  is  thus  in  the  hands  of  a  few  government  supporters. 
Private  members  may  critici/.c   the  Government   respecting  a 


THE   MINISTRY  IN   PARLIAMENT  47 1 

distinctively  cabinet  policy,  but  this  is  not  permitted  to  a 
member  of  the  Ministry.  The  power  of  the  House  as  con- 
trasted with  that  of  the  Cabinet  rests  with  the  conduct  of 
private  members.  In  a  sense,  the  Cabinet  guides,  directs, 
and  controls  the  House  of  Commons.  The  House  also  guides, 
directs,  and  controls  the  Cabinet;  but  the  House  can  only 
act  in  a  rough,  crude,  and  destructive  way.  It  cannot  really 
govern  without  at  the  same  time  submitting  to  ministerial 
control. 

The  Opposition  in  the  House  is  also  subject  to  constant  stress 
and  to  tendencies  toward  readjustment  between  the  leaders 
and  their  followers.  Some  are  in  danger  of  being  won  over  by 
attractive  government  poHcies,  or  they  may  give  support  to  some 
specific  plan  which  the  "  Shadow  Cabinet  "  opposes.  It  is, 
however,  much  easier  for  the  Opposition  than  for  the  party  in 
power  to  keep  its  followers  together.  They  can  more  easily 
conceal  their  discordant  views.  They  are  not  subject  to  a  daily 
questioning  and  a  constant  fire  of  criticism  on  matters  for  which 
they  are  held  responsible.  Yet  even  in  opposition,  a  party  has 
need  of  a  positive  program.  Elections  are  not  usually  carried 
on  mere  criticism  and  negation.  The  case  just  cited  of  the  Tory 
party's  attitude  towards  a  tax  on  food  is  an  illustration  in  point. 
The  Opposition  experienced  a  party  crisis,  and  the  same  sort  of 
sharp  line  of  distinction  was  drawn  between  leaders  and  followers 
as  subsists,  on  the  Government  side,  between  ministers  and 
private  members.  Twenty-seven  of  the  members  of  the  Oppo- 
sition were  not  asked  to  sign  the  petition  to  the  party  leaders, 
because  it  was  deemed  not  good  form  for  one  member  of  the 
opposition  Bench  to  petition  another. 

Two  Ruling  Parties  and  Minor  Groups.  —  In  theory  the  Eng- 
lish system  provides  for  two  parties  and  only  two.  It  is  assumed 
that  the  voters  and  the  country  at  large  will  find  their  way  in 
matters  of  government  by  the  use  of  two  competing  organiza- 
tions. But  no  government  ever  works  in  practice  in  strict  har- 
mony with  a  definite  theory.  There  is  always  a  tendency  to 
form  more  than  two  parties.  In  all  countries  outside  of  the 
British  Empire  where  cabinet  government  prevails,  there  are 
numerous  parties  and  cabinets  supported  by  a  number  of  parties 
which  have  agreed  to  stand  together  for  the  carrying  out  of  a 
prescribed  program.     In  England  this  tendency  to  form  numer- 


472  COMPARATIVE  FREE  GOVERNMENT 

ous  party  groups  has  for  the  most  part  been  kept  within  the  lines 
of  the  two  governing  parties. 

The  most  formidable  attack  thus  far  made  upon  the  system 
came  from  the  Irish  NationaUsts  under  the  leadership  of  Mr. 
Parnell.  Eighty-seven  members  who  resolutely  stand  together 
in  opposition  to  both  parties  are  able  to  destroy  or  paralyze  the 
system.  This  condition  arose  in  1885.  Neither  party  could 
gain  a  majority  large  enough  to  overcome  the  Irish  opposition. 
The  Liberals  effected  an  affiliation  with  the  Nationalists  by 
yielding  to  their  demand  for  Home  Rule  for  Ireland.  This  led 
to  a  division  in  the  party,  and  a  separate  Liberal-Unionist  Party 
was  organized,  which  acted  with  the  Conservatives  in  their 
resistance  to  Home  Rule.  The  balance  was  thus  restored  to  the 
ruling  parties,  but  each  was  now  composed  of  two  distinct  sec- 
tions. By  a  long  process  of  party  adjustment,  the  Unionists 
and  Conservatives  have  become  fused  in  a  single  organization 
having  a  variety  of  names,  as  Unionist,  Conservative,  Tory,^ 
Constitutionalist.  A  similar  process  has  been  in  progress  in  the 
other  party,  but  the  fusion  is  less  perfect.  The  NationaUsts 
organized  for  a  single  purpose  and  with  the  attainment  of  that 
end  the  reason  for  its  existence  ceases. 

The  case  is  different  with  the  Labor  Party.  It  arose  to  give 
support  to  permanent  policies  of  government  which  affect  the 
interests  of  the  wage-earning  class.  The  "  Laborites  "  profess 
to  be  equally  ready  to  coo])erate  with  either  of  the  old  parties. 
They  have  no  intention  of  aspiring  to  become  a  ruUng  party, 
but  only  maintain  an  independent  position  for  a  group  of  mem- 
bers in  order  to  make  their  demands  more  effective.  During  the 
Asquith  ministry  (1910-  )  the  members  supported  the  Liberal 
Government,  while  the  Conservatives  were  bidding  for  their 
favor.  If  parties  of  this  type  should  become  numerous,  they 
woulfl  tend  to  change  the  English  into  the  Continental  type  of 
cahind  goxcrnnu'nt. 

The  King's  Speech  and  Vote  of  Censure.  —  As  already  ex- 
plained in  the  chapter  on  the  House  of  Commons,  much  of  the 
non-partisan  legislation  in  Parliament  is  remanded  to  the  various 
committees,  and  nearly  all  the  time  of  the  House  is  devoted  to  a 
duel  between  the  two  i)arties  over  the  contentious  policies  of 

'  The  word  "Tory"  as  the  niimc  of  an  EnRlish  party  carries  with  it  no  stiRma  such 
as  the  term  acquired  in  America  at  the  time  of  the  Revolution.     It  is  an  ancient  and 


THE   MINISTRY  IN   PARLIAMENT  473 

government.  The  party  program  as  outlined  in  the  King's 
Speech  is  attacked  by  the  Opposition  and  two  weeks  or  more 
devoted  to  criticism  of  the  various  measures  proposed.^  At- 
tractive substitute  measures  may  be  brought  forward  and  the 
Government  is  forced  to  carry  a  majority  of  the  House  against 
them  or  to  resign  office  or  dissolve  Parliament. 

In  February,  1885,  Mr.  Jesse  Collins  introduced  a  resolution 
expressing  regret  that  the  Government  had  not  included  in  their 
program  a  measure  to  provide  allotments  of  land  for  agricultural 
laborers.  The  resolution  was  carried :  Parliament  was  imme- 
diately dissolved  and  there  was  an  appeal  to  the  country  over 
the  question  described  in  party  parlance  as  "  three  acres  and  a 
cow  "  for  farm  laborers.  The  address  in  reply  to  the  King's 
Speech  cannot  be  amended  by  an  opposition  vote.  Such  a  vote 
is  a  notice  to  the  Government  to  surrender  to  the  Opposition. 
Any  member  of  the  House  may  produce  a  cabinet  crisis  by  carry- 
ing a  vote  to  amend  the  reply  to  the  King's  Speech. 

There  is  another  form  of  the  vote  of  censure  which,  if  carried, 
is  fatal  to  the  continuance  of  the  Government.  In  this  case 
the  Leader  of  the  Opposition  moves  a  vote  of  want  of  confidence 
in  the  ministry.  The  Government  must  defeat  such  a  motion  or 
immediately  resign  or  dissolve  Parhament. 

Cabinet  on  the  Defensive.  —  With  the  improved  discipline 
of  the  supporters  of  the  Government  and  the  increased  efficiency 
in  the  organization  of  the  parties  these  direct  attacks  are  less 
formidable.  In  fact,  they  make  it  easy  for  the  Government  to 
muster  its  full  strength  in  an  impressive  manner.  What  really 
tries  the  life  of  a  Cabinet  is  the  effect  of  the  divisions  on  doubtful 
questions;  the  defects  in  their  bills  revealed  in  debate;  the 
amendments  which  they  are  induced  or  forced  to  accept;  the 
perpetual  criticism  from  a  trained  and  alert  Opposition.  The 
Government  may  incur  defeat  on  a  minor  issue  without  serious 
injury,  but  in  all  such  cases  the  Opposition  will  call  for  a  resigna- 
tion. Through  a  partisan  press,  the  public  is  notified  that  the 
Government  is  on  its  last  legs.  Repeated  defeat  does  rapidly 
weaken  the  position  of  the  Government;  hence  it  behooves  it 
always  to  have  at  hand  a  majority  on  all  divisions  however 

honorable  name  of  a  great  party  and  in  recent  years  its  use  has  been  revived  in  the 
phrase  Tory  Di-mocracy. 

iLowL'll,  "The  Government  of  England,"  Vol.  I,  p.  308. 


474  COMPAR.\TIVE  FREE   GOVERNMENT 

trivial.  Occasionally  the  Opposition  takes  the  Government  by 
surprise.  A  time  is  chosen  when  few  members  are  present  and 
enough  voters  are  spirited  in  through  concealed  entrances  to  the 
House  to  defeat  the  Cabinet.  An  amendment  to  the  Home  Rule 
Bill  was  thus  carried  in  191 2.  The  Government  was  then  hard 
pressed  for  time  to  complete  its  program  and  the  Prime  Minister 
gave  notice  that  he  would  simply  rescind  the  action  of  the 
"  snap  "  majority  and  proceed  with  the  Bill.  To  do  this,  in- 
volved a  radical  change  in  a  long-standing  custom  of  the  House, 
the  removal  of  one  more  check  upon  "  hasty  legislation." 
In  the  instance  mentioned  the  Opposition  prevented  this  action 
by  means  of  riot  and  disorder.  The  Government  was  forced 
or  induced  to  follow  the  old  custom  of  framing  a  new  amendment 
which  virtually  destroyed  the  effect  of  the  one  carried  by  the  snap 
vote ;  but  this  consumed  a  week  of  precious  time. 

It  is  economy  on  the  part  of  the  Government  never  to  lose 
its  hold  on  its  majority,  never  to  be  taken  off  guard.  It  is 
likewise  good  politics  for  the  Opposition  to  keep  its  supporters 
well  in  hand;  but  with  the  Government  this  is  a  necessity  if 
pledges  are  to  be  fulfilled. 

Party  Whips.  —  The  Party  Whips  and  their  assistants  are  the 
chief  agencies  for  marshaling  the  forces  of  the  contending 
armies.  Four  salaried  officers  in  the  Ministry  serve  as  wliips, 
while  the  corresponding  officers  for  the  Opposition  act  without 
salary  or  are  paid  out  of  party  funds.  The  Wliips  are  in  the 
Ministry,  but  not  in  the  Cabinet ;  they  take  no  part  in  debate. 
The  Chief  Whip  may  be  promoted  to  a  place  in  the  Cabinet  or 
rewarded  with  a  peerage.  With  his  numerous  aids  and  assist- 
ants, the  Chief  Whip  fills  a  place  scarcely  less  essential  to  the 
working  of  the  system  than  that  of  the  Prime  Minister  himself. 
He  serves  as  eyes  and  cars  for  his  leader,  who  must  be  kept  in- 
formed as  to  the  various  movements  among  his  followers  in  Par- 
liament. He  needs  also  to  be  informed  as  to  tendencies  among 
the  voters.  On  such  questions,  the  Whip  speaks  with  authority. 
He  is  a  trained  politician  of  the  first  order.  He  not  only  knows 
how  to  report  pul)lic  opinion,  but,  in  a  successful  party,  he  is 
master  of  the  various  devices  for  the  direction  of  public  attention 
to  partisan  ends.  He  knows  who  among  the  leaders  of  his 
party  make  a  favoral)lc  im[)ression  on  the  pul)lic,  anri  for  these 
he    may    furnish    occasions    for    frequent    public   appearances. 


THE  MINISTRY  IN  PARLIAMENT  475 

There  may  be  a  public  ceremonial  function  which  apparently 
has  no  connection  with  politics,  yet  an  alert  Whip  may  seek  to 
have  the  right  man  in  his  party  selected  to  preside.  Prizes  are 
to  be  distributed  to  young  people  who  will  soon  be  voters  and 
the  Whip  sees  an  advantage  in  having  the  embryo  voter  receive 
the  prize  at  the  hands  of  a  prominent  party  leader  or  a  member 
of  his  family.  The  Whips  are  not  themselves  leaders ;  they 
do  not  formulate  or  create  public  opinion ;  but  they  see  to  it 
that  available  sources  of  opinion  or  influence  are  directed  to  the 
strengthening  of  their  party. 

The  relation  of  the  parliamentary  Whips  to  local  party  agents 
is  described  in  the  chapter  on  party  organization.  At  present 
we  are  concerned  with  their  principal  work,  which  pertains  to 
the  House  of  Commons.  By  means  of  these  officers  the  leaders 
keep  their  hands  on  their  supporters.  On  all  party  divisions  the 
Whips  act  as  tellers.  The  leaders  have  an  artificial  way  of 
indicating  to  their  followers  how  to  vote.  If  the  leaders  do 
not  request  the  Chairman  to  appoint  their  Whips  as  tellers,  he 
will  select  tellers  from  private  members.  This  is  an  indication 
that  members  are  to  vote  as  they  please. 

The  word  "Whip"  has  two  distinct  meanings.  The  term  is 
derived  from  the  "  Whipper-in  "  at  the  fox  hunt,  and  is  apphed, 
by  analog}^  to  the  men  who  round  up  the  party  supporters  on 
Government  divisions.  The  message  by  which  this  is  effected 
is  also  called  a  "  whip."  All  the  members  receive  these  notices 
to  be  present  at  a  given  time.  If  there  is  a  question  of  doubt  as 
to  the  party  standing  of  a  member,  the  "  whip  "  itself  solves 
the  doubt.  All  are  members  who  receive  the  notice.  The  Irish 
and  Labor  parties  have  their  separate  Whips  who  send  "whips" 
to  their  members.  Nearly  all  members  of  the  House  are  thus 
officially  recognized  as  belonging  to  one  of  the  parties,  and  are 
classified  as  supporters  or  opponents  of  the  Government.  A 
simple  notice  means  that  it  is  highly  desirable  that  the  member 
should  be  present.  A  "  whip  "  underscored  means  increased 
urgency ;  underscored  with  four  black  lines  it  is  a  notice  to  be 
present  on  penalty  of  being  accounted  a  traitor  to  the  party. 
The  Whips  are  gifted  with  powers  of  persuasion.  They  make 
personal  appeals  to  refractory  members.  They  dispense  party 
patronage  and  administer  party  funds.  Loyal  voting  constit- 
uencies may  be  called  upon  to  "  whip  "  in  a  member  who  is  in 


476  COMPAR.\TIVE  FREE   GOVERNMENT 

danger  of  going  astray.  Among  the  members  of  the  Ministry, 
the  Prime  Minister  is  the  chief  party  disciphnarian ;  among 
private  members  this  duty  devolves  upon  the  Chief  Whip. 

The  Relation  of  the  Ministry  to  Finance.  —  The  fusion  of  the 
legislative  and  executive  departments  is  well  exempUfied  in  the 
management  of  the  finances.  This  business  has  always  been 
largely,  and  is  now  completely,  monopolized  by  the  House  of 
Commons.  Under  rules  adopted  early  in  the  eighteenth  cen- 
tury all  matters  pertaining  to  the  spending  of  money  and  the 
raising  of  revenues  are  considered  in  Committee  of  the  Whole. 
Thus  the  House  vindicates  its  right  to  be  informed  as  to  the 
details  of  financial  policies,  but  the  business  itself  is  retained  in 
ministerial  hands.  In  Committee  of  the  Whole  on  Supply  all 
the  information  comes  from  the  heads  of  departments  in  the 
Ministry ;  there  is  no  way  for  a  private  member  to  be  heard  in 
favor  of  any  appropriation  not  included  in  the  ministerial  reports. 
Likewise,  when  the  House  is  in  Committee  of  Ways  and  Means, 
every  item  in  the  measures  for  raising  revenue  comes  from  the 
Crown.  By  long-standing  rule  private  members  are  forbidden 
to  introduce  any  petition  or  bill  involving  an  increased  charge 
upon  the  revenues.  A  private  member  may,  however,  propose 
a  reduction  of  taxation  along  Unes  not  included  in  the  Govern- 
ment program. 

Finance,  then,  is  emphatically  a  cabinet  business.  The 
House  may  ask  questions ;  it  may  criticize  ;  it  may  refuse  assent ; 
but  it  may  not  initiate  any  important  change  in  the  ministerial 
policy.  While  the  House  is  in  Committee  of  Supply  it  is  quite 
in  order  for  the  Leaders  of  the  O[)posilion  or  any  private  member 
to  expose  any  weak  point  in  the  administration  of  the  particular 
department  under  consideration.  Thus  the  departments,  one 
by  one,  are  brought  under  public  notice  and  an  opportunity  is 
offered  for  the  exposure  of  delinquencies. 

The  Chancellor  of  the  Excheciuer  is  the  efficient  head  of  the 
Treasury.  He  receives  from  all  the  departments  the  estimates 
of  expenditures  for  the  fiscal  year  ending  March  31.  These  are 
considered  and  comparcfl,  and  from  ihem  a  careful  estimate  is 
made  of  the  aggregate  exi)endilure.  The  Treasury  officers  like- 
wise make  an  estimate  of  the  revenues  of  the  state.  Upon  the 
basis  of  the  estimated  needs  for  the  fiscal  year  and  the  income 
from  permanent   revenues   the  Chancellor  of   the   Exchequer 


THE  MINISTRY   IN   PARLIAMENT  477 

formulates  such  modifications  in  the  taxing  system  as  seem  best. 
The  appropriations  for  the  various  departments  and  the  changes 
in  the  system  of  taxation  are  all  embodied  in  one  project  of  legis- 
lation. This  is  known  as  the  Annual  Budget.  In  it  is  often 
embodied  the  most  important  legislation  for  the  year. 

The  contrast  with  the  government  at  Washington  is  evident. 
There  large  expenditures  are  made  upon  the  irresponsible  initia- 
tive of  private  members  who  may  wish  to  supply  a  friend  with  a 
pension  or  a  town  in  their  district  with  a  public  building.  Sup- 
plies are  awarded  to  the  departments  through  a  half  dozen  or  more 
unrelated  committees.  Taxes  are  levied  with  only  incidental 
reference  to  the  annual  expenditures.  The  separation  of  the 
Executive  from  the  legislature  makes  fiscal  control  more  complex 
and  more  difficult. 

REFERENCES 

Anson.     Law  and  Custom  of  the  Constitution,  Vol.  I,  Chaps.  VIII,  IX. 
DuPRiEZ.     Les  Ministres  dans  les  principaux  pays  d' Europe  et  d'Amerique, 

Edition  1893. 
IIearn.     The  Government  of  England,  Chaps.  VI,  VII,  IX. 
Lowell.     The  Government  of  England,  Vol.  I,  Chaps.  XVII,  XVIII. 
Medley.     The  English  Constitution,  Edition  1898,  Chap.  VI. 
Ogg.     The  Governments  of  Europe,  Chap.  III. 


CHAPTER   XXXVIII 

The  Crown 

The  parties  govern  with  little  reference  to  the  Crown ;  never- 
theless there  is  a  king  in  England.  No  institution  seems  more 
firmly  established  than  the  monarchy.  Coincident  with  the 
advent  of  democracy  the  Crown  has  grown  more  popular. 
How  could  England  be  England  without  a  royal  family?  That 
democracy  excludes  monarchy  is  a  crude  notion  arising  from  a 
false  analysis  of  government.  Democracy  is  not  a  mere  form 
of  government,  it  is  a  principle  inhering  in  every  form ;  it  may 
assume  many  forms.  The  term  "monarchy"  does  stand  for  a 
particular  form  of  government ;  but  the  form  admits  of  infinite 
adaptations  to  every  grade  of  popular  control. 

Monarchies  Classified.  —  Between  the  absolute  monarchy, 
in  which  all  power  is  conceded  to  the  person  of  the  monarch,  and 
the  complete  democracy,  in  which  all  power  is  conceded  to  the 
voting  constituency,  there  are  unlimited  varieties  in  govern- 
mental mechanism.  It  may  be  helpful  to  an  understanding  of  the 
subject  to  reduce  all  monarchies  to  four  classes:  viz..  Absolute, 
Limited  or  Constitutional  Monarchy,  Parliamentary,  and  Demo- 
cratic Monarchy.'  Of  the  first,  autocracy  or  absolute  monarchy, 
Russia  has  been  the  standing  exemplification,  but  with  the 
establishment  of  the  Duma  there  ensued  a  transition  to  the 
second  class,  viz..  Limited  Monarchy.  England  was  from  the 
first  a  limited  monarchy.  There  was  always  an  assembly 
which  participated  in  governmenl.  England  became  a  Parlia- 
mentary Monarchy  in  the  Revolution  of  1688.  The  person  of 
the  monarch  then  ceased  to  be  the  chief  source  of  authority. 
The  Crown  l)ecame  subject  to  the  Assembly.  Ministers  of 
state  became  responsible  to  Parliament.  In  a  limited,  or  consti- 
tutional monarchy,  the  assembly  exerts  an  inlluence,  it  may  be  at 
times  a  controlling  influence,  over  the  monarch.     In  a  parlia- 

•  Scignobos,  "A  Toljlical  History  of  Contemporary  Europe,"  Vol.  1,  i).  117. 

478 


THE   CROWN  479 

mentary  monarchy  the  monarch  exerts  an  influence  over  parlia- 
ment ;  at  times  he  may  even  exert  a  controlUng  influence,  yet 
the  governmental  center  of  gravity  remains  with  the  assembly. 
In  the  democratic  Monarchy  all  this  is  changed  ;  both  the  Crown 
and  the  Parliament  become  subject  to  the  will  of  the  enfranchised 
nation.  Since  1832  England  has  gradually  changed  from  parHa- 
mentary  to  democratic  monarchy.  Those  who  had  been  rulers 
became  servants  of  the  public.  Autocracy  does  exclude  democ- 
racy; monarchy  does  not.  Norway  is  an  intelligent,  fully 
enfranchised  democracy,  yet  Norway  deliberately  adopted 
monarchy  without  abating  one  whit  of  its  democracy. 

Royal  Aid  to  Free  Government.  — ■  English  devotion  to 
monarchy  is  not  based  upon  blind,  unreasoning  sentiment,  but 
rather  upon  an  inteUigent  comprehension  of  the  facts  of  history. 
The  story  is  already  told  in  the  chapter  on  local  government. 
Saxon  kings  wrought  with  the  people  in  securing  to  them  the 
enjoyment  of  local  liberties.  Normans  and  Plantagenets 
defended  them  against  feudal  tyrants.  High-monarchy  Tudors 
rid  the  country  of  civil  war  and  subjected  lords  and  bishops 
to  parUamentary  rule.  The  reaction  against  the  innovating 
Stuarts  led  to  the  subjection  of  the  Crown  also  to  parliamentary 
rule.  In  1832,  when  the  time  had  come  for  the  first  great  act 
of  enfranchisement,  the  House  of  Lords  stood  like  a  stone  wall 
athwart  the  path  of  progress.  In  this  emergency  it  was  the  king 
who  made  it  possible  to  take  the  step  without  a  bloody  revolu- 
tion. William  IV  gave  to  the  Prime  Minister  the  written  state- 
ment that,  in  case  the  peers  again  refused  to  pass  the  bill  for 
extending  the  franchise,  he  would  create  enough  new  peers  to 
pass  it.  Again,  in  191 1,  the  obstruction  of  the  hereditary  House 
was  removed  by  the  simple  announcement  of  the  Prime  Minister 
that,  in  case  of  further  refusal  to  pass  the  pending  IdUI,  the  king 
would  be  advised  to  create  new  peers.  Four  monarchs  in  suc- 
cession, their  reigns  covering  the  entire  period  of  the  enfranchise- 
ment, have  learned  to  cooperate  with  and  assist  the  servants  of 
the  people.  It  is,  therefore,  a  mark  of  inteUigence  as  weU  as  of 
right  sentiment  for  the  democracy  to  approve  of  the  monarchy. 

Relation  of  Crown  to  Cabinet.  —  The  Cabinet  system  requires 
that  there  shall  be  an  executive  head  above  the  party  leaders 
who  shall  mediate  between  the  parties.  If  there  is  not  a  king, 
then  there  must  be  a  president  or  some  other  officer.     The  Prime 


480       COMPARATIVE  FREE  GOVERNMENT 

Minister  represents  a  party,  not  the  entire  state.  There  must 
be  an  executive  head  who  represents  the  state. 

The  mere  formal  act  of  receiving  the  resignation  of  a  defeated 
Prime  Minister  and  sending  for  the  leader  of  the  victorious  party 
and  asking  him  to  form  a  new  ministry  is  a  necessary  and  an  im- 
portant service.  But  there  are  times  when  no  party  has  a  clear 
majority ;  times  when,  within  the  party,  there  is  confusion  in 
leadership.  At  such  times  it  may  become  the  duty  of  the  king 
to  act  upon  his  own  judgment,  to  take  a  personal  share  in  bring- 
ing order  out  of  confusion.  Lowell  gives  four  instances  in  which 
Queen  Victoria  determined  by  her  personal  choice  who  should  be 
Prime  Minister.'  A  fifth  instance,  in  1890,  illustrates  another 
phase  of  royal  service.  The  Queen  first  sent  for  Lord  Harting- 
ton,  who  was  nominal  head  of  the  party ;  but  Gladstone,  who  had 
retired  a  few  years  before,  had  resumed  actual  leadership. 
Hence  it  became  the  duty  of  the  Queen  to  give  effect  to  the 
changed  condition  by  making  Gladstone  Prime  Minister.-  All 
these  services  are  indispensable.  Within  the  parties  and  between 
the  parties  conditions  are  constantly  arising  which  may  call  into 
play  the  personal  exercise  of  royal  prerogative.  So  long  as  the 
cabinet  system  works  according  to  the  theory  of  the  modern 
super-legal  Constitution,  executive  power  rests  with  the  inner 
circle  of  the  Ministry.  The  monarch  himself  is  a  distinctly 
subordinate  minister  to  the  Cabinet.  He  does  what  he  is  told 
to  do.  But  if  the  machinery  is  out  of  order,  if  there  is  an  actual 
or  a' threatened  deadlock  in  government,  there  at  once  ensues  a 
tendency  to  revert  to  the  earlier  Constitution,  and  the  monarch, 
from  his  vantage  ground  of  an  experienced,  non-partisan  ob- 
server, may  call  the  ministers  to  his  aid  to  restore  the  govern- 
ment to  its  normal  coiidilion. 

Changed  Relations  to  the  Democratic  Cabinet.  —  Bagehot, 
writing  in  the  late  sixties  of  the  last  century,  has  much  to  say  of 
the  rigiUs  of  the  monarch  to  be  informed  as  to  contemplated 
ministerial  |)olicies  and  the  j)ossibility  of  his  securing  a  modifica- 
tion or  a  change  of  policy  by  his  advice  and  council.'"  The  gov- 
ernment was  then  parliamentary  but  not  democratic.  Under 
the  more  recent  democratic  Constitution,  it  is  no  longer  desirable 

•  "The  (lovcrnmcnt  of  En,':land,"  Vol.  I,  p.  34. 

•  Morlcy,  "  Life  of  f ;ia(lstonf."  Vol.  11,  Chap.  VIT. 
'  Uagirhot,  "The  l^nnlish  Con  .liliilion,"  Chap.  III. 


THE   CROWN  481 

that  the  monarch  shall  be  informed  in  advance  as  to  the  cabinet 
policies  in  order  that  he  may  advise  or  warn  or  in  any  way  seek 
to  change  the  policy.  It  is  enough  that  the  Cabinet  meet  the 
demands  of  their  new  masters,  the  people.  Only  harm  and  con- 
fusion and  waste  of  energy  are  likely  to  result  from  any  sort  of 
royal  interference  with  the  partisan  cabinet  policies.  Queen 
Victoria  was  in  many  ways  an  ideal  parliamentary  monarch,  but 
there  is  evidence  that  much  royal  energy  was  worse  than  wasted 
because  she  did  not  understand  the  changes  involved  in  the 
transition  to  a  democratic  monarchy. 

The  usefulness  of  the  monarch  in  his  relation  to  the  demo- 
cratic Cabinet  consists  in  his  remaining  entirely  aloof  from  every- 
thing partisan.  The  Cabinet  should  formulate  its  policy  without 
advice  or  influence  from  the  Crown,  and  royal  approval  should 
follow  as  a  matter  of  course.  Disraeli  was  at  one  time  rightly 
reproved  for  presenting  to  the  Crown  a  choice  of  policies.  It  is 
unfair  thus  to  bring  the  monarch  into  contentious  poUtics. 
So  long  as  the  parties  work  normally,  the  Crown  has  nothing  to 
do  but  to  let  them  work.  It  is,  however,  desirable  that  the 
monarch  be  informed  as  to  the  difficulties  and  the  exigencies  of 
party  politics,  so  that  in  case  royal  interference  is  needed,  it 
may  be  given  intelligently.  In  some  respects  the  position  of 
the  king  resembles  that  of  the  permanent  under  secretary  whose 
duties  require  him  to  serve  with  equal  faithfulness  the  party 
chiefs  of  each  party.  The  secretary  assists  in  overcoming  party 
difficulties  in  respect  to  the  minor  details  of  administration. 
If  the  king  takes  no  share  in  any  partisan  pohcy,  unless  a  threat- 
ening emergency  has  arisen,  then  he  may  act  with  authority  in 
such  a  way  as  to  command  general  acquiescence.  It  was  a  serious 
question  in  1910  whether  the  Crown  was  justified  in  forcing  the 
peers  to  pass  the  measure  depriving  them  of  the  power  of  veto. 
The  chief  object  of  the  general  election  had  been  to  test  the  will 
of  the  electors  on  that  question.  The  monarch  then  expressed 
a  willingness  to  act  upon  the  advice  of  his  ministers  in  the  matter 
of  the  creation  of  new  peers.  The  House  of  Lords  yielded,  and 
the  controversy  was  at  an  end. 

The  fact  that  the  monarch  has  no  share  in  ordinary  party 
government  by  no  means  detracts  from  his  field  of  usefulness. 
We  have  seen  that,  at  any  given  time,  only  a  few  questions  are 
the  subjects  of  party  controversy.     In  this  narrow  held,  party 


482  COMPARATIVE   FREE   GOVERNMENT 

leaders  have  a  monopoly.  The  wide  field  of  national  life  is  still 
open  to  the  royal  family.  The  warfare  against  disease  has  never 
been  partisan.  King  Edward  VII  took  an  active  and  intelligent 
interest  in  the  fight  against  cancer.  The  encouragement  of 
agriculture  and  other  lines  of  industrial  improvement  are  fit 
subjects  for  royal  activity.  Members  of  the  royal  family  are 
especially  in  demand  at  public  functions,  such  as  the  opening  of  a 
school  or  a  Ubrary,  the  dedication  of  a  monument.  They  are 
active  in  works  of  charity.  Outside  of  the  narrow  field  of  party 
politics,  the  opportunities  for  service  are  unlimited. 

Foreign  Affairs.  —  The  relation  of  the  Crown  to  foreign  afi"airs 
has  been  especially  close  and  intimate.  The  two  houses  of  Par- 
liament have  no  share  in  the  making  of  treaties.  Legally  the 
business  is  in  the  hands  of  the  King  in  Council.  Constitutionally 
it  belongs  to  the  responsible  Gov'ernment  of  the  day.  But  in 
the  middle  of  the  last  century  the  monarch  was  still  active  in 
foreign  affairs.  For  instance,  the  Queen  and  the  Prince  Consort 
modified  the  dispatches  sent  to  America  at  the  beginning  of  the 
Civil  War  in  such  a  way  as  to  avoid  war.  Such  business  now 
would  rest  entirely  with  the  Cabinet ;  the  monarch  would  not 
be  personally  involved.  By  being  entirely  separated  from  the 
controversial  side  of  foreign  relations,  the  monarch  may  now  be 
even  more  useful  in  facilitating  right  international  conduct. 
It  is  understood  that  King  Edward  was  signally  eflicient  in 
removing  friction  and  promoting  a  good  understanding  in  the 
relation  of  England  to  France  and  to  the  other  states  of  Europe. 
The  feeling  of  Europe  towards  England  docs  not  involve  per- 
sonal censure  of  the  Crown  as  the  corresponding  sentiment 
towards  Germany  involves  censure  of  the  Emperor.  The  latter 
is  the  object  of  censure  because  of  specific  personal  acts,  such  as 
the  dispatch  to  Krugcr  at  the  time  of  the  Jameson  Raid  in  the 
Transvaal.  The  King  oi  England  can  l)c  under  no  such  censure, 
although,  knowing  the  mind  and  tcm[)er  of  his  Ministers,  he 
has  unrivaled  opportunities  for  securing  for  them  favorable  hear- 
ing in  other  states. 

Democratic  Monarchy  is  of  very  recent  origin.  I'.ngland  is 
still  in  the  midst  of  the  transition  ;  the  work  of  political  enfran- 
chisement is  not  yet  completed,  a  considerable  number  of  the 
male  adults  being  still  debarred  from  the  ])rivilege  of  voting, 
while   the   voting   privileges  of   women   are   much   restricted. 


THE  CROWN  483 

Property  enjoys  an  excess  of  privilege  which  gives  to  a  few  land- 
holders enough  votes  to  change  the  result  of  a  close  election. 
The  House  of  Lords  has  been  deprived  of  much  of  its  former 
power,  but  it  is  yet  to  be  reconstructed  so  as  to  harmonize  with 
the  accepted  Democracy.  The  House  of  Commons  is  over- 
worked and  relief  is  sought  by  a  proposed  devolution  of  power 
upon  provincial  legislatures.  These  are  all  questions  which 
have  to  do  with  the  mere  mechanism  of  government  involved  in 
the  transition  to  democracy.  To  describe  a  democratic  mon- 
archy, then,  involves  the  description  of  an  institution  which  is 
in  the  process  of  making.  No  state  thus  far  exhibits  a  perfected 
example. 

The  Crown  as  a  Disguise.  —  Bagehot,  writing  more  than  forty 
years  ago,  gave  as  a  chief  function  of  the  monarchy  to  serve  as  a 
disguise,  a  source  of  deception  to  the  masses  of  the  people, 
causing  them  to  think  that  they  were  cared  for  by  a  beneficent 
royal  family,  while  in  fact  they  were  governed  by  party  leaders, 
Bagehot  wrote  under  the  impression  that  monarchy  was  likely 
to  decUne  with  the  rise  of  democracy,  and  he  feared  that  with 
the  decline  of  monarchy,  free  government  was  in  danger  of  losing 
the  Cabinet  system  which  he  regarded  as  vastly  superior  to  the 
Presidential  system.  He  argued  that,  even  if  monarchy  should 
fail,  it  was  still  possible  to  continue  the  Cabinet  with  an  elected 
President.  Monarchy,  however,  since  that  time  has  con- 
tinuously grown  more  popular  and  the  people,  whose  advent  to 
power  Bagehot  looked  upon  with  fear  and  dread,  are  in  no  need 
of  a  dignified  institution  to  humbug  them  into  a  belief  that  they 
are  governed  by  processes  which  they  do  not  understand.  It 
has  now  become  evident  that  it  was  Bagehot  himself  that  was 
under  a  delusion  as  to  the  services  of  the  Crown  as  a  disguise. 
The  common  people  have  apparently  been  quite  correct  in  their 
opinions  as  to  how  they  were  governed. 

As  a  Symbol  of  Unity.  —  Much  more  fortunate  is  Bagehot's 
designation  of  the  Crown  as  the  symbol  of  unity,  the  object  of 
patriotic  sentiment.  The  King  personates  the  state.  Loyalty 
to  a  person  worthily  fulfilling  such  a  mission  is  different  in  the 
sentiment  involved  from  loyalty  to  a  flag  or  to  a  temporary 
President ;  but  monarchy  is  not  at  all  essential  to  a  strong  and 
persistent  sentiment  of  loyalty.  Probably  no  state  has  ever 
existed  which  has  more  sentimental  patriotism  than  has  Switzer- 


484  COMPARATIVE   FREE   GOVERNMENT 

land  to-day.  The  sentiment  may  exist  and  abound  without  a 
person  or  a  personating  head.  Yet,  if  the  state  has  a  personal 
office  of  this  sort  associated  with  a  thousand  years  of  fortunate 
history,  it  is  an  asset  of  considerable  advantage.  Americans 
cultivate  a  sentiment  of  loyalty  towards  the  stars  and  stripes, 
but  it  is  a  sentiment  created  by  effort,  by  association ;  it  does  not 
arise  naturally  as  does  the  sentiment  towards  a  royal  family. 
Americans  give  the  personal  touch  to  their  patriotism  b)''  making 
of  George  Washington  a  patron  saint  and  a  symbol  of  unity  in 
the  early  day,  and  of  Abraham  Lincoln  a  savior  and  a  deliverer 
in  the  critical  middle  period  of  our  history.  Patriotism  is 
assisted  by  a  personation  of  the  state.  This  is  one  great  function 
of  the  EngUsh  Crown  and  it  seems  as  helpful  to  this  end  under 
the  democracy  as  under  the  high-monarchy  Tudors. 

The  royal  family  has  been  and  continues  to  be  an  important 
factor  in  binding  together  the  different  parts  of  the  empire. 
Scotland  and  England,  after  centuries  of  war,  became  united 
through  a  branch  of  the  royal  family.  Edward  I  (1272-1307) 
conquered  Wales  and  conciliated  the  people  by  presenting  to 
them  the  new-born  heir  to  the  throne  as  "  Prince  of  Wales." 
This  ceremony  continues  to  be  repeated  and  the  Crown  has  no 
more  loyal  subjects  than  the  Welsh.  It  is  a  thousand  pities 
that  there  was  not  early  found  a  "  Prince  of  Ireland  "  also. 
The  royal  family  has  neglected  Ireland  to  the  lasting  detriment 
of  the  country.  It  is  significant  that  during  recent  democratic 
days,  royal  neglect  of  Ireland  has  been  recognized  and  efforts 
made  to  repair  the  injury. 

The  service  of  the  Crown  is  not  less  apparent  in  its  relation  to 
the  outlying  possessions  and  dominions.  Victoria  was  made 
Empress  of  India  to  promote  loyalty  and  strengthen  the  hands 
of  the  Empire.  Memljcrs  of  the  royal  family  visit  this  great 
possession  for  the  same  i)ur[)ose.  This  is  a  reasonable  adapta- 
tion of  means  to  an  end,  though  the  results  may  not  be  easily 
measured.  There  is,  however,  no  uncertainty  aljout  the  relation 
of  the  Crown  to  the  Dominion  of  Canada.  The  Canadians  are 
intensely  loyal,  after  both  the  sentimental  and  the  rational 
manner.  The  sentiment  is  based  upon  the  realization  of  what 
they  believe  to  be  a  superior  form  of  democratic  government. 
Instead  of  the  king  they  have  in  Canada  a  member  of  the  royal 
familv  or  some  other  statesman  who  serves  as  a  non-partisan 


THE   CROWN  485 

executive  head.  He  fulfills  for  Canada  the  functions  of  the  king 
in  England,  and  the  political  parties  govern  as  they  do  in  Eng- 
land. Canadian  loyalty  has  grown  out  of  a  conviction  that  the 
English  Cabinet  system  fulfills  the  needs  of  the  Dominion  better 
than  any  other  government.  A  similar  condition  prevails  both 
in  Australia  and  New  Zealand,  dominions  thoroughly  demo- 
cratic and  self-governing  in  all  domestic  affairs,  yet  bound  to  the 
British  Crown  by  hoops  of  steel.  In  South  Africa  there  are 
Dutchmen  (Boers)  who  a  few  years  ago  hated  the  English  as 
implacable  conquerors  and  enemies.  But  the  chief  of  the  Boers, 
as  Prime  Minister  of  the  Union  of  South  Africa,  became  a  loyal 
subject  of  the  British  Crown.  This  is  not  a  bUnd,  unreasoning 
sentiment,  but  a  reasonable  recognition  of  favors  received.  It 
is  as  the  head  of  a  group  of  self-governing  democracies  that  the 
monarchy  of  England  is  attaining  its  greatest  glory. 

All,  therefore,  which  Bagehot  said  of  the  service  of  the  Crown 
as  an  object  of  patriotic  sentiment  remains  in  force  when  appHed 
to  the  democratic  monarchy.  The  same  is  true  of  the  services 
of  the  royal  family  as  exemplars  of  morality  and  religion.  The 
publicity  demanded  by  democracy  tends  to  realize  in  the  royal 
family  a  fulfillment  of  ideal  domestic  virtues.  The  self-con- 
scious and  enduring  democracy  will  see  to  it  that  those  who  are 
born  to  the  office  of  the  head  of  the  state  shall  be  trained  to  the 
right  fulfillment  of  the  duties  of  the  office.  Abundant  oppor- 
tunity is  offered  in  the  non-partisan  public  service  to  make  it 
easy  and  convenient  to  combine  theory  and  practice  in  the 
training  of  the  members  of  the  royal  family. 

A  standing  argument  against  Democracy  is  the  apparent 
absurdity  of  depending  upon  a  chance  majority  of  an  ignorant 
and  untrained  mob  to  decide  intricate  questions  of  statesman- 
ship. American  State  and  Federal  Constitutions  are  con- 
sidered mere  mechanisms  to  enable  the  few  to  rule,  despite  the 
temporary  preferences  of  a  majority  of  the  people.  The  Eng- 
lish Cabinet  system,  however,  has  had  the  effect  of  committing 
the  Tory  party,  the  party  of  reaction  and  conservatism,  to  the 
advocacy  of  immediate  direct  and  unchecked  democracy ;  to 
the  policy  of  deciding  the  intricate  questions  at  issue  between  the 
parties  by  a  direct  vote  of  the  people.'     The  Radical  party  in 

1  Cf.  "  The  Problem  of  Democracy  and  the  Swiss  Solution,"  in  the  Edinburgh 
Review,  Vol.  218,  pp.  257-277,  January,  1913. 


486  COMPARATIVE   FREE   GOVERNMENT 

England  can  scarcely  afford  to  be  less  democratic  than  their 
opponents.  For  the  first  time  in  human  history,  a  great  empire 
is  pledged  to  a  policy  of  immediate,  direct,  and  unchecked  popular 
rule.  This  position  has  been  reached  not  through  actual  behef 
in  the  principles  of  democracy,  but  by  a  process  of  exclusion  by 
a  forced  choice  between  policies  regarded  as  evils. 

Govermnent  by  Unanimous  Consent.  —  The  Monarchy  gives 
institutional  expression  to  a  complete  refutation  of  the  chief 
argument  against  democracy.  It  is  an  observed  fact  that  loy- 
alty to  the  Crown  is  practically  unanimous.  We  have  here  a 
demonstration  that  a  democracy  may  be  unanimous  on  one 
important  subject.  The  EngUsh  Crown  has  always  stood  for 
an  indefinite  range  of  powers.  The  Cabinet  is  coming  to  be 
associated  with  a  narrow  range  of  the  few  policies  which  are  under 
dispute.  Here,  then,  are  two  institutions  exemplifying  two 
Unes  of  governmental  business  —  the  field  of  unanimous  consent 
and  the  field  of  controversy.  It  is  the  common  concern  of  all 
patriots  to  enlarge  the  field  of  general  agreement  and  to  narrow 
that  of  controversy.  So  long  as  the  principle  of  democracy  was 
under  dispute  the  Crown,  on  account  of  past  associations,  was 
reduced  to  its  lowest  terms.  To  establish  democracy,  the  Cabi- 
net, at  least  in  theory,  had  to  make  good  its  claim  to  plenary 
powers.  But  with  democracy  conceded,  there  is  nothing  in  the 
way  of  extending  the  services  of  the  monarchy  in  the  growing 
field  of  non-partisan  conduct.  This  is  a  unique  service  of  the 
Crown  in  a  new  and  untried  form  of  government  —  that  of  giving 
institutional  expression  to  the  unity  of  the  state. 

Education  as  a  Means  of  Securing  Public  Servants.  —  Closely 
allifd  to  this  is  another  lesson  which  the  democracy  needs  to 
learn  ;  namely,  that  there  are  other  ways  of  securing  reliable 
public  servants  besides  the  method  of  nomination  and  election. 
The  royal  family  are  born,  educated,  and  trained  to  the  service 
of  the  state.  This  principle  admits  of  indefinite  extension. 
Democracy  in  I  lie  past  has  been  militant.  It  has  been  forced 
to  fight  for  existence,  forced  to  elect  full-grown  fighting  men, 
men  often  abounding  in  obvious  defects  and  imperfections. 
But  with  the  end  of  warfare,  a  new  sj)irit  will  ensue.  Education 
and  training  will  hold  a  larger  place  in  the  determining  of  ix)si- 
tion  in  the  service  of  the  state.  It  is  said  tliat  in  some  of  the 
Swiss  communes  where  democratic  forms  are  conipaialiveiy  old, 


THE   CROWN  487 

some  families  choose  and  follow  official  life  much  as  others  fol- 
low watchmaking  or  agriculture.^  The  experienced  democracy 
will  avail  itself  of  heredity,  natural  aptitude,  education  and  train- 
ing in  pubhc  life  as  well  as  in  private  industry. 

Members  of  the  royal  family  in  England  have  been  trained  to 
service  in  the  army  and  navy.  This  arises  from  the  close  hered- 
itary association  between  the  Crown  and  public  defense  and 
from  the  fact  that  in  the  crude  beginnings  of  democracy,  mili- 
tarism strikes  the  fancy  of  the  public.  In  the  experienced 
democracy,  this  will  be  changed.  The  education  of  the  future 
king  will  be  in  the  hne  of  his  actual  services  to  the  state.  These 
pertain  primarily  to  the  solution  of  problems  which  arise  in  party 
government.  As  a  non-partisan  arbiter  between  parties,  he  needs 
to  be  well  informed  in  the  details  of  the  party  system.  Much 
more  to  the  purpose  would  it  be  to  place  the  heir  apparent  and  the 
heir  presumptive  under  the  tutelage  of  a  board  of  undersecretaries 
than  under  the  orders  of  a  military  captain.  It  is  no  part  of  the 
duties  of  a  democratic  king  either  to  obey  orders  or  to  give 
orders.  His  high  mission  is  to  assist  in  discovering  and  giving 
adequate  expression  to  the  will  of  the  people.  A  properly 
educated  monarch  would  know  when  and  where  to  proffer  his 
services  and  many  a  wasteful  party  crisis  would  be  forestalled. 
The  Crown,  as  has  been  pointed  out,  naturally  gives  emphasis 
to  the  agreements  between  the  parties.  The  trained  monarch 
would  cooperate  intelligently  with  the  leaders  of  both  parties 
in  securing  efficiency.  The  very  process  of  educating  the  future 
king  would  tend  to  improve  the  civil  service.  Training  for  the 
office  concentrates  attention  of  all  parties  on  agreed  methods 
of  improving  the  service.  The  trained  monarch  would  unite 
with  party  leaders  in  directing  the  education  of  the  future  per- 
manent officials.  The  natural  result  of  this  would  be  to  secure 
to  the  cabinet  system  the  economies  of  a  bureaucracy  without 
sacrificing  the  advantages  of  suggestion  and  criticism  from  rival 
party  leaders  who  are  alternately  heads  of  the  departments. 
The  system  itself  would  tend  to  define  and  restrict  the  limits  of 
partisan  controversy  to  the  few  questions  in  respect  to  which 
there  is  real,  widespread  difference  of  opinion.  Even  in  respect 
to  the  few  questions  of  doubtful  policy  the  important  advantage 

'  Lowell,  "  Governments  and  Parties  in  Continental  Europe,"  Vol.  II,  pp.  225  and 
226. 


488  COMPARATIVE   FREE   GOVERNMENT 

to  the  state  rests  not  upon  the  assumption  that  the  majority  is 
necessarily  correct  in  its  decisions,  but  upon  the  assured  educa- 
tional advantages  derived  from  the  attempt  to  settle  doubtful 
policies  by  securing  a  majority.  Undoubtedly,  a  majority  may 
prove  to  be  mistaken,  but  so  long  as  the  state  rests  for  its  stabil- 
ity on  unanimous  agreement  in  most  things,  a  majority  of  but 
one  comes  by  so  much  nearer  the  ideal.  No  better  way  has  ever 
been  discovered  or  suggested  for  obtaining  a  working  basis  for 
action  on  the  few  questions  which  are  in  themselves  doubtful. 
The  method  of  obtaining  majorities  ought  to  be  such  as  tends 
to  secure  unanimous  agreement.  Getting  majorities  by  free 
and  fair  debate  has  such  a  tendency.  The  democratic  monarchy 
has  an  advantage  over  other  forms  of  free  government  in  that  it 
tends  to  draw  a  distinct  line  between  the  agreed  and  the  con- 
troverted policies  of  government. 

Different  Systems  Compared.  —  Comparison  between  the 
French  and  the  English  forms  of  cabinet  government  is  more 
fully  discussed  in  a  later  chapter.  It  may  be  in  order  to  state 
here  that  if  an  elected  president  takes  the  place  of  the  hereditary 
monarch,  there  are  both  gains  and  losses  incident  to  the  change. 
The  president,  it  may  be  assumed,  is  a  man  of  experience,  a 
leading  statesman  chosen  to  dedicate  several  years  of  his  mature 
manhood  to  the  jiublic  service.  The  system  ought  to  yield  a 
uniformly  high  standard  of  ability  in  the  office.  The  occupant 
has  also  had  experience  in  dealing  with  men  on  equal  terms. 
On  the  other  hand  it  is  much  more  difficult  for  the  president  to  be 
non-partisan  or  to  be  regarded  as  non-partisan.  If  the  Prime 
Minister,  a  party  leader,  is  made  President  by  party  votes  in 
the  legislature,  partisan  association  inevitably  goes  with  him 
into  the  higher  office.  Whatever  advantage  there  is  in  the  royal 
familv  as  an  object  of  patriotism  and  as  both  a  sentimental  and 
a  practical  bond  of  union  in  the  state  is  largely  sacrificed  in  the 
case  of  the  temporarily  elected  chief.  The  American  Executive 
furnishes  no  ready  means  of  distinguishing  between  partisan 
and  non-partisan  policies.  The  President  is  party  leader,  Prime 
Minister,  and  King  all  in  one  person. 

The  Relation  of  the  King  to  Parliament.  —  The  time-honored 
phrase  "  The  King  in  I'arliamenl  "  has  become  an  empty  form 
of  words  in  the  evolution  of  the  democratic  monarchy.  The 
King  has  practically  nothing  to  do  with  Parliament,  though 


THE   CROWN  489 

ancient  forms  are  still  scrupulously  observed.  The  crowning 
of  the  monarch  is  a  parliamentary  ceremony ;  Parliament  pre- 
scribes the  coronation  oath.  The  ceremony  of  calling,  proro- 
guing, and  dissolving  Parliament  by  royal  order  remains  un- 
changed. The  monarch  enters  the  throne  prepared  for  him  in 
the  House  of  Lords  and  reads  the  "  King's  Speech  "  to  the  two 
Houses  at  the  opening  of  Parliament.  All  these  are  survivals 
of  ceremonies  which  once  marked  the  close  relation  of  the  King 
to  the  Legislature.  There  is  no  law  nor  is  there  an  established 
rule  of  the  Constitution  which  debars  the  monarch  from  sug- 
gesting changes  in  a  cabinet  program,  yet  the  "  king's  speech  " 
is  written  by  the  Cabinet,  and  the  ministers  alone  are  responsible 
for  every  item.  The  monarch,  in  common  with  every  subject, 
has  the  right  to  request  a  modification  of  the  laws.  It  is  under- 
stood that  the  coronation  oath  was  modified  at  the  request  of 
George  V.  But  supreme  lawmaking  power  now  rests  with  the 
Cabinet  in  Parhament  and  the  Constitution  consigns  the  mon- 
arch to  a  subordinate  position. 

Queen  Anne  (1702-17 14)  was  the  last  ruler  who  refused  to  sign 
a  bill  passed  by  the  two  Houses.  There  has  been  no  change  in 
legal  form,  yet  executive  veto  has  entirely  disappeared.  The 
Cabinet  takes  the  place  formerly  held  by  the  King.  Executive 
assent  is  assumed  in  every  measure  introduced  by  the  Govern- 
ment. The  Ministry  controls  legislation.  It  may  effectively 
arrest  or  veto  any  measure  it  chooses  during  the  process  of 
enactment.  But  when  a  bill  has  passed  the  final  stage  in  Parlia- 
ment, royal  assent  follows  as  a  mere  clerical  act. 

It  has  already  been  made  evident  that  the  monarch  has  no 
connection  with  the  Judiciary.  The  police  and  the  courts  of  law, 
formerly  agents  of  royal  power,  are  now  far  removed  from  any 
sort  of  influence  from  the  Crown.  Through  the  Home  Secre- 
tary, the  Cabinet  exercises  the  pardoning  power  and  directs  the 
conduct  of  the  police.  Through  the  Lord  Chancellor,  judicial 
appointments  arc  made  and  judicial  procedure  modified. 

The  Supreme  Service  of  the  Crown.  —  With  all  its  limitations, 
the  Crown  fills  a  useful  and  important  place  in  the  cabinet 
system.  It  is  false  and  misleading  to  call  the  monarch  a  mere 
figurehead.  He  is  the  real  Head  of  the  nation.  At  any  moment 
it  may  become  his  transcendent  duty  to  exercise  supreme  power 
in  the  name  of  and  with  the  authority  of  the  democracy.     With 


490  COMPARATIVE  FREE   GOVERNMENT 

all  the  people  united  in  loyalty  to  the  Crown,  poUtical  parties 
may  with  comparative  safety  indulge  in  a  great  variety  of  dis- 
ruptive conflicts.  Party  leaders  enter  the  Hsts  conscious  of  a 
visible  special  Providence  whose  services  may  be  invoked  to 
prevent  irretrievable  disaster.  It  is  almost  treason  to  suggest 
such  a  thing,  yet  it  is  a  fact  that  the  old  prerevolutionary  Consti- 
tution of  the  Stuart  monarchs  still  survives.  Every  form  has 
been  religiously  preserved.  If  the  occasion  required  it,  these 
forms  would  admit  of  being  vitalized  and  the  earlier  Constitu- 
tion might  by  reversion  become  again  the  actual  Constitution. 
Such  a  thing  could  never  be  thought  of  unless  a  condition  has 
been  reached  which  would  call  for  a  dictator.  But  this  back- 
ground of  history  is  fitted  to  give  courage  both  to  the  royal  family 
and  to  the  radical  democratic  leaders  in  the  work  of  perfecting 
a  system  of  government  which  will  meet  all  the  demands  of  a 
government  of  the  people,  by  the  people,  and  for  the  people. 

REFERENCES 

Anson.     Law  and  Custom  of  the  Conslilittion,  Vol.  II,  I-III. 

Bagehot.     The  English  Conslitution,  Edition  1904,  Chaps.  Ill,  IV. 

Hearn.     The  Government  of  England. 

Lee.     Queen  Victoria,  A  Biography. 

I-OWELL.     The  Government  of  England,  Vol.  I,  Chaps.  I,  II. 

Ogg.     The  Governments  of  Europe,  Chaps.  I— III. 

Queen  Victoria's  Letters  (Editors,  Benson  &  Eshcr,  three  Vols.,  1909). 


CHAPTER  XXXIX 

Origin  of  Political  Parties 

Political  parties  are  found  in  all  free  states.  Even  in  a  des- 
potism there  are  rival  factions  contending  for  power.  States 
pass  from  the  rule  of  a  despot  to  the  rule  of  the  people  through 
the  medium  of  voluntary  organizations  which  appeal  for  support 
to  the  people.  The  party  may  be  defined  as  an  organ  of  public 
opinion  directed  to  political  ends.  Parties  then  are  a  necessary 
agency  in  all  states  in  which  public  opinion  is  recognized  as  a 
factor  in  government. 

Various  Uses  of  the  Term.  —  States  may  be  divided  into  two 
main  classes  with  reference  to  their  relation  to  party :  first,  those 
in  which  permanent  party  organizations  assume  control  of  the 
government,  and,  second,  those  in  which  parties  do  not  govern, 
but  simply  influence  the  government.  England  and  the  United 
States  illustrate  party  government  with  two  ruling  parties  as 
an  integral  part  of  the  government.  In  the  United  States  the 
party  organizations  are  legally  recognized  and,  in  the  States, 
regulated  by  statutes.  In  England,  parties  are  constitutionally 
recognized  in  such  a  way  as  to  place  party  rules  above  the  law. 
America  and  England  exemplify  two  radically  different  types 
of  responsible  party  government. 

Outside  of  the  Anglo-Saxon  world,  it  is  difficult  to  find  any 
state  in  which  permanent  "  institutional  "  party  government 
prevails.  In  France,  Italy,  and  other  states,  where  some  features 
of  the  cabinet  system  are  found,  legislative  majorities  are  main- 
tained by  temporary  party  coaUtions.  The  permanent  parties 
influence  but  do  not  control  government.  In  Switzerland, 
where  democracy  has  arisen  directly  out  of  local  communes  and 
cantons,  a  so-called  political  party  maintains  a  majority  in  the 
national  legislature,  but  it  does  not  presume  to  govern  in  the 
English  or  the  American  sense  of  the  term. 

Like  everything  vital  in  the  English  Constitution,  the  party 
has  its  roots  deep  in  past  history.     After  1066,   two  peoples, 

491 


492  COMPARATR'E   FREE   GOVERNMENT 

English  and  French,  lived  in  the  Island,  representing  two  diverse 
systems  of  government.  For  three  hundred  years  two  languages 
were  spoken,  and  it  was  much  more  than  three  hundred  years 
before  the  ideals  of  local  liberty  prevailed  against  innovating 
foreign  rule.  All  that  has  been  said  in  previous  chapters  on 
local  government,  the  origin  of  the  Crown,  the  House  of  Lords, 
the  House  of  Commons,  and  the  courts  of  law,  is  contributory 
to  an  understanding  of  the  origin  of  parties.  Every  line  of  that 
history  is  an  integral  part  of  the  history  of  the  rise  of  responsible 
party  government. 

The  charter  of  liberties  of  Henry  I  (1110-1135)  marks  a  great 
triumph  of  the  English  faction  over  the  French.  The  curia 
regis  of  Henry  I  (11 54-1 189)  and  his  compact  system  of  local 
government  appeared  for  the  time  a  death  blow  to  the  French 
feudal  party.  When  feudal  lords  drew  their  swords  on  behalf  of 
English  liberty  and  compelled  King  John  to  sign  Magna  Charta, 
12 15,  they  won  another  great  triumph  of  the  English  over  the 
French  faction.  For  two  hundred  and  sixty  years  after  Magna 
Charta  continuous  actual  or  threatened  civil  war  prevailed. 
Dukes  and  earls  were  pitted  against  one  another  and  contended 
for  the  control  of  the  government.  This  was  not  party  govern- 
ment ;  it  was  not  primarily  government  by  appeal  to  public 
opinion  ;  but  it  was  analogous  to  party  government  in  that  for  a 
long  time  it  did  involve  a  fairly  equal  balance  between  two  con- 
tending factions ;  it  did  compel  continuous  attention  to  political 
questions  on  the  part  of  a  large  body  of  the  citizens.  Moreover, 
the  class  which,  united,  would  have  been  most  dangerous  to 
liberty  was  divided  and  weakened ;  and  one  other  effect  of  the 
centuries  of  conflict  and  war  was  to  call  into  existence  an  ex- 
perienced middle  class  in  the  counties  and  cities,  who  were  capa- 
ble of  withstanding  the  later  encroachments  of  royal  despotism. 

As  noted  in  former  cha])ters,  the  Tudor  rulers,  relying  upon 
the  support  of  the  middle  and  lower  classes  of  the  people,  made 
an  end  of  civil  war  and  brought  the  unruly  factions  under  the 
dominion  of  the  courts.  Then  the  middle-class  folk  in  county 
anrl  city,  with  the  House  of  Commons  as  a  chief  agency,  sujiple- 
mented  for  a  few  years  by  an  army  under  Cromwell,  made  the 
Crown  subject  to  Parliamenl.  Hut  just  at  the  lime  that  the 
Crown  was  becoming  subordinate  Parliament  itself  was  passing 
under  the  control  of  permanent  party  organizations. 


ORIGIN  OF  POLITICAL  PARTIES  493 

Relation  of  Party  to  Religious  Controversy.  —  But  to  under- 
stand the  material  out  of  which  parties  are  evolved  it  is  needful 
to  take  account  of  the  religious  history  of  England.  The  Eng- 
lish are  by  nature  a  religious  people  and  their  religion  has  tended 
directly  to  the  strengthening  of  the  spirit  of  brotherhood,  which 
is  the  very  essence  of  democracy.  The  early  religious  teaching 
added  greatly  to  the  popular  ability  to  resist  tyranny  in  the 
parishes,  hundreds,  and  counties.  The  pastors  and  priests  who 
lived  with  the  people  often  cast  in  their  lot  with  them,  while 
the  higher  clergy  were  giving  aid  to  their  oppressors. 

Each  of  the  great  national  religious  revivals  in  the  twelfth, 
thirteenth,  and  fourteenth  centuries,  added  strength  to  the 
popular  aspirations  for  liberty.  The  third  of  these,  led  by  John 
Wyclif,  threatened  a  complete  revolution  in  Church  and  State. 
The  higher  clergy  were  exposed  as  tyrants  and  the  masses  of  the 
poor  were  led  to  feel  the  injustice  of  their  position.  Under  the 
preaching  of  the  Lollards  they  arose  in  rebellion,  occupied  Lon- 
don, slew  the  Archbishop,  and  so  frightened  all  sections  of  the 
ruling  classes  that  they  combined  under  the  Lancastrian  mon- 
arch to  make  an  end  of  the  open  profession  of  Lollardy.  Wyclif 's 
teachings,  however,  were  secretly  kept  alive  among  the  common 
people  and  became  an  important  factor  in  making  England  the 
leading  Protestant  nation  of  Europe  two  hundred  years  later. 

The  Christian  religion  strengthened  democracy  in  many  ways. 
Lollardy  was  suppressed  because  it  openly  espoused  the  cause  of 
the  wage  earner.  All  combinations  of  laborers  to  improve 
their  conditions  were  forbidden,  but  the  poor,  nevertheless, 
gained  permission  to  unite  in  the  support  of  a  sacred  altar  or  for 
the  rendering  of  a  religious  drama,  and  their  rulers  discovered 
after  a  time  that  under  the  guise  of  religion  these  societies  were 
attempting  to  raise  wages.  Local  religious  organization  was 
always  a  means  of  training  for  democracy,  and  when  the  great 
schism  came  in  the  English  Church  large  masses  of  the  people 
were  found  to  be  already  qualified  to  take  an  intelligent  part  in 
the  national  controversy. 

The  political  party  system,  which  became  the  organ  for  the 
modern  triumph  of  democracy,  grew  out  of  religious  controversy. 
Queen  Elizabeth  found  England  equally  divided  between  Roman- 
ist and  Protestant  and  she  left  it  nearly  all  Protestant.  In  the 
meantime  Protestants  had  become  divided  into  reactionaries 


494  COMPARATIVE  FREE  GOVERNMENT 

and  reformers,  or  Puritans.  The  House  of  Commons  opposed 
the  Stuart  monarchs  on  many  questions  other  than  religious,  but 
it  was  religion  especially  that  nerved  the  people  to  actual  war 
against  Charles  I. 

Origin  of  Party  Names.  —  Roundheads  and  Cavaliers  were 
the  immediate  precursors  of  Whigs  and  Tories.  Roundheads 
stood  for  Parliament  and  for  a  reformed  Protestant  religion. 
Cavaliers  upheld  the  Crown  and  the  established  order.  Had 
they  fought  out  their  disputes  in  Parliament  and  before  voting 
constituencies,  instead  of  on  a  bloody  field  of  battle,  they  would 
have  been  political  parties.  Incident  to  the  war,  the  execution 
of  the  king  and  the  setting  up  of  a  Commonwealth,  there  arose 
a  distinct  spirit  of  democracy.  Free  government  had  already 
taken  root  in  America  and  this  reacted  upon  the  party  of  reform 
in  the  mother  country.  A  faction  arose  favoring  direct  rule 
by  the  people  in  church  and  state  alike  and  at  no  time  since  has 
democracy  been  without  advocates. 

The  monarchy  was  restored  under  a  wave  of  reaction  against 
Puritan  rule.  Drastic  measures  were  taken  to  crush  out  dissent 
in  the  church  and  as  a  result  nearly  half  of  England  became  per- 
manent Dissenters,  separated  from  the  established  Church. 
Since  the  restoration,  one  party  has  usually  had  the  adherence 
of  the  established  Church  and  the  other  jiarty  has  received 
support  from  dissenting  churches. 

The  names  Whig  and  Tory  came  into  use  as  party  desig- 
nations in  1680.  Shaftsbury  as  leader  of  the  parliamentary 
jjarty  was  securing  petitions  for  the  calling  of  Parliament  with 
the  intention  of  excluding  James  H  from  the  throne  and  making 
the  Duke  of  Monmouth  the  successor  of  Charles  H.  Counter 
petitions  were  circulated  by  the  other  party,  Shaftsbury's 
supporters  were  called  "  petitioners  "  and  their  opponents  were 
dubbed  "  abhorrers."  1"he  more  odious  term  "  Whig  "  was 
fastened  upon  the  petitioners  by  their  enemies,  thus  associating 
them  with  alleged  treasonable  covenanters  in  Scotland.  The 
Whigs  retaliated  with  the  term  '•  Tory,"  carrying  with  it  an 
association  with  Irish  bandits.  Names  thus  given  in  contempt 
remained  to  designate  honorable  ruling  |)arties. 

Petitioners  and  abhorrers  it  would  seem  were  not  all  of  them 
voters.  Few  citizens  at  that  time  had  a  right  to  vote,  but  for 
centuries  the  great  mass  of  the  unenfranchised  had  been  trained 


ORIGIN  OF   POIITTCAL  PARTIES  495 

to  take  an  active  interest  in  politics.  Especially  had  this  been 
the  case  for  more  than  a  hundred  years  when  religious  opinion 
and  church  discipline  had  been  the  chief  divisive  issues  in  party 
politics.  The  parties  appealed  to  the  mob  as  well  as  to  the 
voters  for  the  support  of  their  policies. 

Factions  become  Parties.  —  With  the  advent  of  Whigs  and 
Tories  there  comes  a  reversion  to  that  evenly  balanced  conflict 
between  contending  factions  which  had  come  to  an  end  at  the 
close  of  the  Wars  of  the  Roses  in  1485.  Again  dukes  and  earls 
in  rival  camps  contend  for  the  control  of  the  state.  The  earlier 
method  of  warfare  was  by  the  use  of  actual  arms.  Parliament 
was  used  as  a  tool  of  victorious  generals  to  complete  the  destruc- 
tion of  their  enemies  by  impeachments  and  bills  of  attainder. 
Whigs  and  Tories  now  found  Parliament  in  continuous  pos- 
session of  the  powers  of  government.  In  order  to  govern,  it 
was  necessary  to  control  Parliament,  but  not  by  a  victorious 
army,  for  no  civil  war  worthy  of  the  name  has  arisen,  under 
the  party  system.  Parliament  has  been  controlled  by  means 
of  elections,  by  persuasion,  by  bribery,  and  by  appeals  to  the 
mob  threatening  civil  war.  At  every  stage  in  their  history 
party  conflicts  in  England  exhibit  their  ancient  background  of 
war.  The  language  is  military,  the  spirit  is  military,  and  much 
of  the  actual  conduct  has  been  violent.  Wilkes  as  a  leader  of 
mobs,  1780,  vindicated  the  right  of  a  constituency  to  decide 
who  should  be  its  representative  in  the  House  of  Commons. 
The  unenfranchised  classes  took  part  in  elections  and  in  the 
conflicts  between  Pitt  and  Fox  as  rival  leaders ;  the  election  of 
a  member  often  degenerated  into  street  fights  continuing  many 
days.  Militancy  has  not  even  yet  wholly  disappeared ;  wit- 
ness the  conflict  over  the  Home  Rule  Bill  for  Ireland.  American 
parties  have  not  the  ancient  background  of  war  and  party 
conflicts  are  less  violent. 

Prior  to  the  enfranchisement  of  1832,  the  Whig  party  was 
composed  of  leading  families  of  the  nobility  supported  by  voting 
constituencies  in  the  towns  and  cities.  The  Tory  nobility  on 
the  other  hand  looked  for  their  following  to  the  squire  and  parson 
in  the  counties.  The  two  parties  thus  reflected  ancient  and 
fundamental  divisions  in  local  government.  The  Whigs  were 
sponsors  for  the  trading  and  industrial  classes  chiefly  located  in 
cities  or  boroughs ;  while  the  Tories  had  the  larger  support  from 


496  COMPARATIVE  FREE   GOVERNMENT 

the  counties.  This  division  is  quite  in  harmony  with  the  rela- 
tion of  the  parties  to  the  churches,  described  in  a  previous  para- 
graph. The  dissenters  or  non-conformists  who  supported  the 
Whigs  lived  for  the  most  part  in  towns,  while  the  Established 
Church  predominated  in  the  country.  These  divisions  were 
at  no  time  complete ;  Whigs  always  had  some  support  from  the 
counties  and  from  the  Established  Church,  and  the  Tories  had 
some  city  members. 

The  democracy  is  gradually  removing  the  separate  party 
alignments  of  town  and  country.  Disraeli,  as  Tory  Prime 
Minister,  made  a  direct  bid  for  the  city  vote  by  the  enfranchise- 
ment act  of  1867.  This  is  usually  characterized  in  party  slang 
as  "  dishing  the  Whigs."  The  Liberals  responded  in  1884  by  a 
corresponding  act  enfranchising  agricultural  laborers.  The 
Conservatives  replied  by  a  comprehensive  bill  providing  for 
direct  democratic  rule  in  all  the  counties  and  in  London.  A  dis- 
pute over  the  property  rights  of  the  Church  and  over  the  rela- 
tion of  the  Church  to  education  has  tended  to  prolong  the 
ancient  party  alignments  based  upon  religion.  With  the 
settlement  of  these  disputes,  church  policy  in  England  would 
cease  to  be  a  party  question  as  it  has  ceased  to  be  in  Switzer- 
land, the  United  States,  and  Norway. 

From  Queen  Anne  (1702-17 14)  to  George  III  (1760)  the 
House  of  Lords  was  Whig ;  since  that  date  it  has  been  Tory. 
There  was  a  party  realignment  when  Pitt  became  a  Tory 
leader  in  1784.  A  more  drastic  realignment  followed  when 
Tory  reformers  supported  a  Whig  ministry  in  the  passage  of 
the  Reform  Act  of  1832.  Party  names  were  changed  at  this 
time.  Liberal  was  substituted  for  Whig,  and  in  course  of  time 
the  term  Whig  entirely  disaj)peared  as  the  name  of  a  party. 
Conservative  was  likewise  substituted  for  Tory,  but  both  names 
still  survive.  On  account  of  the  rise  of  Liberal-Unionists, 
previously  described,  a  third  name  has  been  added.  So  that 
the  same  i)arty  is  called  at  different  periods  Tory,  Conservative, 
or  Unionist. 

REFERENCES 

CiruRCiiii.L.     Life  of  l,nrd  Riuidnlt^h  Churchill. 
Constilulional  Yearbook. 

CooKK.     The  History  of  f'arly  from  the  Whig  and  Tory  Factions  in  the  Rrif^n 
of  Charles  II  to  the  Reform  Ad,  1832,  three  Vols.,  1837. 


ORIGIN  OF  POLITICAL  PARTIES  497 

Dickinson.     The  Development  of  Parliament  during  the  Nineteenth  Century. 

Harris.     History  of  the  Radical  Party  in  Parliament. 

Kebbel.     History  of  Toryism. 

Leckey.     History  of  Englatid  in  the  Eighteenth  Century,  seven  Vols.,  1903. 

Liberal  Year  Book. 

Lowell.     The  Government  of  England,  1908,  Chaps.  XXIX-XXX. 


2K 


CHAPTER   XL 

The  Parties  in  Parliament 

The  President  of  the  United  States  and  members  of  Congress 
come  into  office  pledged  to  carry  out  a  party  platform  adopted 
at  a  National  Party  Convention.  In  England  the  Parliament  it- 
self takes  the  place  of  the  National  Convention.  The  King's 
Speech  is  the  platform  for  the  session  and  the  Cabinet  is  the 
authoritative  party  committee.  Surrounded  by  their  supporters 
in  the  House  of  Commons,  the  party  committee  proceeds  to  ful- 
fill its  promises  to  the  voting  constituencies  under  the  criticism 
of  the  party  committee  of  the  defeated  party.  It  is  as  if  the 
National  Nominating  Conventions  of  the  ruling  parties  in 
America  were  to  meet  together  in  one  room,  and  the  party  of 
the  majority  were  in  actual  possession  of  the  government  and 
obliged  to  formulate  and  to  carry  out  both  legislative  and  ex- 
ecutive policies  in  the  presence  of  the  minority  party.  The 
House  of  Commons  is  the  meeting  place  of  the  ruling  parties. 
The  proceedings  arc  peculiarly  interesting  because  the  makers 
of  the  party  platform  are  at  the  same  time  carrying  it  into 
effect.  The  interest  is  increased  because  the  rival  party  is 
present  in  force,  and  at  every  stage  is  striving  to  convince  a 
majority  of  the  assembled  supporters  of  the  two  parties  that 
they  are  themselves  in  possession  of  a  better  policy.  Publicity 
is  thus  secured.  Under  the  fire  of  expert  criticism,  the  Govern- 
ment modifies  its  policy  and,  as  finally  executed,  the  program 
eml)odies  the  wisdom  of  l)olh  parties.  At  the  opening  of  the 
flaily  sessions,  an  hour  is  consumed  by  the  Ministers  in  giving 
account  of  their  conduct  in  answer  to  questions  of  which  pre- 
vious notice  has  i)een  given.  This  is  an  important  part  of  the 
machinery  for  keeping  the  House  and  the  country  informed  on 
mal  tcrs  of  public  interest. 

Relation  of  the  Cabinet  to  the  Two  Houses.  —  Party,  or 
cabinet,  government    is   compliraled    by  the   existence   of   two 

40« 


THE   PARTIES   IN   PARLIAMENT  499 

houses  in  the  legislature.  The  rise  of  the  Cabinet,  as  has  been 
shown,  belongs  to  the  period  in  which  the  House  of  Commons 
held  the  leading  place  in  Parliament.  It  is  preeminently  a 
House  of  Commons  institution  and  its  responsibility  is  to  that 
House,  though  a  considerable  number  of  both  cabinet  and  non- 
cabinet  ministers  have  always  been  members  of  the  Upper 
House.  Much  of  the  time  the  Prime  Minister  has  been  a  peer. 
The  system  requires  a  recognized  official  party  leader  of  each 
party  in  each  House.  One  of  these  is  the  leader  who  becomes 
Premier  when  his  party  wins  the  majority  in  the  Commons. 
The  other  is  the  leader  of  debate  in  the  other  House.  If  the 
Premier  is  a  peer,  the  leader  of  debate  in  the  Commons  holds 
a  position  of  great  responsibility.  He  is  on  the  field  of  battle 
and  must  respond  to  the  changing  moods  of  the  conflict.  Yet 
only  the  Prime  Minister  is  in  a  position  to  give  utterance  to  the 
final  conclusions  of  the  party  on  disputed  issues.  Greater 
unity  and  ej6(iciency  are  secured  by  combining  the  office  of  party 
leader  with  leadership  in  the  lower  House.  With  both  of  the 
parties  thus  organized  the  varying  positions  assumed  in  the 
exigencies  of  the  conflict  carry  the  weight  of  final  authority. 
Only  in  the  House  of  Commons  are  there  party  whips.  Here 
the  two  parties  must  keep  their  supporters  well  in  hand.  The 
battle  is  on  all  the  time  and  pickets  are  set  to  watch  the  soldiers 
of  the  enemy.  The  whips  and  their  assistants  are  always  on 
the  alert  to  discover  a  party  advantage. 

The  members  of  the  Ministry  in  the  House  of  Lords  have 
fewer  political  and  legislative  burdens.  The  sittings  are  brief, 
the  business  not  exacting,  and  Ministers  are  more  free  to  attend 
to  the  administrative  duties  of  their  office.  One  argument  in 
defense  of  the  Upper  House  has  been  that  it  furnishes  numerous 
ministers  who  were  not  overburdened  with  other  than  ministerial 
duties.  When  the  head  of  one  of  the  departments  is  a  peer,  the 
parliamentary  Secretary  of  that  department  must  be  a  commoner. 
Some  one  in  the  Commons  must  answer  for  the  conduct  of  each 
department.  When  the  chief  is  a  commoner,  the  Secretary  is 
likely  to  be  a  peer.  It  is  not,  however,  essential  that  all  the 
departments  be  represented  in  the  Upper  House.  The  Treasury 
is  never  thus  represented. 

Until  1832,  the  theory  of  equality  between  the  two  houses 
had  prevailed.     Except  as  to  matters  of  taxation,  the  Lords 


500  COMPARATIVE   FREE   GOVERNMENT 

equally  with  the  Commons  participated  in  legislation.  The 
act  of  Queen  Anne  in  changing  a  Whig  into  a  Tory  House  by  the 
creation  of  twelve  new  peers  was  viewed  as  unconstitutional. 
When,  however,  after  long  debate  and  an  appeal  to  the  constit- 
uencies, William  IV  gave  notice  that  in  case  the  peers  again 
refused  to  pass  the  reform  bill,  it  would  be  passed  by  the  creation 
of  new  peers,  a  distinct  change  was  effected  in  the  Constitution. 
Henceforth,  the  political  constitution  made  it  the  duty  of  the 
peers  to  pass  all  government  bills  which  in  their  opinion  had  the 
support  of  the  country.  They  still  had  a  right  to  amend  bills 
or  to  reject  those  of  doubtful  support. 

It  is  one  of  the  marvels  of  English  history  that  the  House  of 
Lords  should  have  maintained  its  position  without  further 
change  for  nearly  eighty  years,  controlled  during  all  this  time  by 
one  party.  When  the  Conservatives  were  in  power,  every  act 
of  Parliament  was  in  the  hands  of  its  friends  in  both  houses.  No 
government  bill  would  be  rejected  and  if  amended,  it  would  be 
in  a  friendly  spirit.  There  could  be  no  conflict  between  the  two 
houses.  Tory  ministers  in  both  houses  could  cooperate  with 
the  full  assurance  that  they  were  in  command  of  the  entire  leg- 
islature. For  one  of  the  parties  Parliament  became  practically 
a  single  chamber.  When  the  other  party  was  in  power,  there 
were  two  chambers  and  one  of  them  was  politically  hostile  to  the 
other.  Numerous  bills  passed  by  a  Liberal  government  have 
been  rejected  by  the  House  of  Lords.  The  principle  had  been 
clearly  enunciated  that  it  was  the  duty  of  the  peers  to  follow 
the  lead  of  the  Commons,  not  to  obstruct  legislation  which 
the  people's  representatives  approved ;  but  the  rule  of  action 
was  indefinite.  Just  when  should  the  lords  yield?  How  should 
they  know  what  bills  had  the  support  of  the  country?^  Some 
expositors  answered  by  saying  that  the  peers  had  a  right  to 
reject  all  bills,  but  if  the  same  measure  should  be  sent  uj)  a 
second  time,  it  should  be  passed.  Especially  should  the  peers 
yield,  if,  upon  the  rejection  of  a  bill,  Parliament  should  be  dis- 
solved and  the  same  government  should  be  returned  to  power. 
In  practice,  however,  the  ])eers  had  a  free  hand  in  rejecting  a 
large  proportion  of  the  hills  j)assed  by  a  Liberal  Government. 
Not  only  so,  but  by  amendment  they  changed  the  character  of 
much  of  the  Liberal  legislation  which  they  consented  to  pass. 

'  Dicey,  "The  Law  of  ihc  Constitution,"  p.  .584  (1885). 


THE   PARTIES   IN   PARLIAMENT  501 

That  such  a  condition  should  continue  so  long  is  proof  of  the 
conservative  character  of  the  radical  party. 

The  change  came  in  191 1,  after  the  House  of  Lords  had  refused 
to  vote  for  the  Government  Finance  Bill  of  1909.  For  many 
years  there  had  been  growing  hostility  toward  the  Upper  House. 
Numerous  plans  for  its  reform  had  been  proposed.  The  rejec- 
tion of  the  Budget  precipitated  action.^  The  peers  have  still 
the  power  of  delaying  a  cabinet  measure  for  a  period  of  two  or 
more  years.  It  has,  however,  become  possible  for  a  strong 
Government  ultimately  to  pass  a  bill  despite  the  resistance  of 
the  peers. 

The  Act  of  191 1  satisfies  neither  party.  The  Liberals  secured 
its  enactment  as  a  makeshift  pending  a  more  thorough  reform. 
They  object  to  it,  because  it  still  comes  short  of  securing  equality 
between  the  parties.  The  Upper  House  is  more  hostile  than 
before  and  there  is  still  opportunity  for  obstruction  and  delay. 
The  Conservatives  view  the  measure  as  an  act  of  destruction, 
depriving  or  threatening  to  deprive  the  time-honored  Second 
Chamber  of  all  its  powers  and  committing  the  government  of 
the  country  to  a  single-chambered  legislature.  The  reform  yet 
to  be  wrought  will  seek  to  place  the  two  parties  on  an  equality 
in  their  relation  to  support  from  the  Second  Chamber. 

The  cabinet  system  tends  to  concentrate  political  power  in 
one  house.  The  Cabinet  is  a  unit ;  it  cannot  be  equally  respon- 
sible to  two  houses.  In  some  way  they  must  be  made  one. 
The  American  system  admits  of  two  houses  of  the  legislature, 
each  elected  in  the  same  way,  each  having  equal  power.  But 
organize  a  cabinet  in  such  a  legislature  and  place  in  its  hands 
the  responsibility  for  both  lawmaking  and  law  administration, 
and  there  would  be  trouble.  A  cabinet  cannot  both  make  laws 
and  govern,  unless  it  has  a  continuous  party  majority.  The 
Australians  are  trying  the  experiment  of  a  cabinet  system  with 
two  houses  each  elected  by  poj>ular  vote.  Provision  is  made, 
however,  for  a  joint  assembly  of  the  two  houses  in  case  of 
emergency.  Canada  maintains  the  cabinet  system  by  making 
the  second  chamber  distinctly  subordinate  and  filling  it  with 
appointees  who  consent  to  eschew  party  politics.  It  is  theoreti- 
cally possible  to  construct  a  second  chamber  which  would  do 
useful  non-partisan  revisory  work  for  both  parties  in  matters 

*  Sec  above,  p.  463. 


502  co:mpar.'\tive  free  government 

of  legislation  and  at  the  same  time  furnish  to  each  of  them 
experienced  administrators.  The  English  House  of  Lords  may 
be  developed  in  this  direction  and  cease  to  be  a  tool  of  one 
party.  As  nearly  as  may  be  its  membership  will  then  be  divided 
between  the  parties.  Such  a  House  might  readily  make  itself 
useful  in  the  growing  field  of  cooperative  legislation  between 
the  parties.  It  might  be  serviceable  also  as  a  revisory  chamber 
for  all  government  bills.  To  this  end,  the  Second  Chamber 
should  be  freed  from  suspicion  of  partisan  bias.  The  relation  to 
the  Democracy  should  be  similar  to  that  of  the  Crown,  both  be- 
coming efficient  and  active  agents  in  matters  of  common  agree- 
ment. Thus  differentiated,  the  House  of  Commons  would 
become  the  one  chief  agency  for  the  discovery  and  the  formu- 
lation of  the  will  of  the  state  on  the  few  questions  in  respect 
to  which  there  is  serious  diversity  of  opinion.  The  ideal  of 
cabinet  government  requires  that  the  two  parties  shall  have 
equal  opportunity  to  make  their  wills  go.  Thus  far  England 
has  had  no  such  government. 

Merits  and  Demerits  of  the  Cabinet  System.  —  Dual  party 
government  of  the  cabinet  type  is  one  among  many  forms  for 
democratic  government.  It  is  the  most  interesting,  the  most 
spectacular,  and  withal  the  simplest.  No  other  form  has  had 
so  wide  and  far-reaching  an  influence.  In  the  interest  of  the 
great  future  of  free  government  it  is  desirable  that  it  should  not 
be  abandoned  until  its  reasonable  possibilities  have  been  thor- 
oughly tested.  Along  with  the  party  conflict  involving  radical 
changes  in  the  House  of  Lords  have  come  propositions  which 
suggest  modifications  of  the  cabinet  system.  The  Tory  party 
proposes  a  direct  vote  of  all  the  electors  as  a  substitute  for  the 
parliamentary  vote  on  the  more  imjiortant  of  the  controverted 
measures.  Thus  far  the  system  has  derived  its  chief  interest 
from  the  fact  that  the  rival  parties  are  the  sole  agencies  for 
formulating  and  adopting  i)rojects  of  legislation  in  the  field  of 
contentious  politics.  Forty  or  fifty  men  divide  themselves  into 
two  rival  cami)S.  They"  line  up  "and  "  whip  in  "  their  supporters 
in  Parliament.  They  seek  to  extend  their  organization  so  as  to 
include  every  vote  in  the  United  Kingdom.  They  thus  become 
two  rival  schools  for  the  education  and  training  of  all  the  people. 
The  school  is  always  in  session.  Its  lessons  are  interesting, 
because  they  [)rofoun(lly  affect   the  well-being  of  the  jjcople. 


THE  PARTIES   IN   PARLIAMENT  503 

The  teachers  are  the  men  who  both  say  and  do  at  the  same 
time.  It  is  the  one  business  of  the  rival  party  leaders  to  keep 
the  entire  nation  informed  as  to  what  they  have  done  and  what 
they  propose  to  do,  and  their  position  is  such  as  to  secure  the 
maximum  of  responsibility  for  every  promise  made  to  the  public. 
Statesmen  formulate  policies  with  the  intention  of  winning  and 
maintaining  a  majority  in  the  legislature,  and  if  they  succeed, 
then  they  must  make  good  their  claims,  or  give  place  to  others.^ 

The  system  has  also  its  limitations.  It  leaves  to  members 
of  the  legislature  little  room  for  independent  action.  Members 
of  the  Cabinet  cannot  be  independent  because  they  must  all 
speak  and  act  as  one  man.  Ministers  not  in  the  Cabinet  are 
bound  to  uphold,  vote  for,  and  defend  every  Government 
measure.  There  may  be  independence  among  private  members, 
but  the  tendency  of  the  system  is  to  make  every  member  an 
unquestioning  supporter  of  his  party  leaders.  Treason  against 
the  party  is  likely  to  be  followed  by  political  death.  As  shown 
in  the  next  chapter,  party  leaders  control  nominations  and 
the  independent  candidate  finds  little  place.  The  voters  are 
independent,  but  they  are  limited  in  their  choice  to  the  two  rival 
groups  of  party  leaders  in  whose  selection  they  have  no  direct 
share.  As  to  the  securing  of  desired  legislation  or  the  preven- 
tion of  a  detested  act,  the  people  must  persuade  or  frighten 
the  party  leaders.  This  is  done  by  agitation,  petition,  and 
public  demonstration. 

If  the  referendum  should  be  adopted,  it  would  furnish  an 
alternate  method  of  preventing  the  passage  of  an  act  which 
the  voters  did  not  approve.  The  House  of  Lords  has  served 
as  a  check  on  one  of  the  parties,  often  vetoing  bills  or  compelling 
an  appeal  to  the  country  over  a  party  issue,  —  a  sort  of  indirect 
referendum.  With  the  removal  of  the  Lords'  veto,  the  proposi- 
tion for  a  direct  referendum  appears.  This  democratic  measure 
would  probably  be  followed  by  the  popular  initiative.  In  any 
event,  the  cabinet  system  would  be  so  far  set  aside  or  modified. 
The  Cabinet  could  no  longer  carry  the  full  measure  of  respon- 
sibility. There  would  be  at  least  a  divided  responsibility  and 
there  would  be  a  division  in  popular  interest.  Rival  parties 
could  no  longer  monopolize  political  attention.     There  might 

'  By  means  of  a  coalition  Cabinet  the  system  readily  adapts  itself  to  a  realignment 
of  parties  or  to  a  great  emergency  whicli  oversiiadows  contentious  politics. 


504  C0MPAR.\T1\E   FREE   GOVERNMENT 

in  the  end  be  worked  out  a  more  satisfactory  democratic  govern- 
ment, but  it  would  not  be  in  the  full  sense  a  cabinet  government. 
Another  proposition  which  comes  quite  naturally  with  the 
referendum  is  to  deprive  the  Cabinet  of  the  power  to  dissolve 
Parliament,  to  have  a  fixed  term,  say  four  years,  for  the  House 
of  Commons  ;  this  in  the  interest  of  independence  on  the  part  of 
the  members.  But  with  a  fixed  term  for  Parliament  and  direct 
participation  of  the  people  in  legislation,  party  government 
would  be  in  a  measure  set  aside. 

REFERENCES 
(See  References,  Chap.  XXXIX.) 


i 


CHAPTER  XLI 

Local  Party  Organization 

English  and  Americans  have  ever  been  preeminent  in  organi- 
zation. English  Uberties  were  first  defended  and  maintained 
through  the  cooperation  of  the  people  in  counties,  cities,  and 
townships,  or  parishes,  with  one  or  another  of  the  opposing 
factions  in  the  king's  government.  When  political  parties  were 
organized  in  England  they  focused  popular  attention  upon  the 
central  government.  In  a  sense,  the  party  may  be  said  to  have 
taken  the  place  of  local  government.  In  the  meantime  Ameri- 
cans were  laying  the  foundations  for  a  great  federated  republic 
by  the  use  of  counties,  cities,  and  townships  transplanted  to 
the  New  World.  When  America  became  independent,  national 
parties  arose  and  assumed  control  of  the  government.  Perma- 
nent parties  were  formed  there  out  of  the  local  party  caucuses  in 
the  voting  precincts.  The  organization  of  the  party  followed 
the  order  of  the  organization  of  the  nation :  first  the  town  and 
city,  then  the  county,  the  State,  and,  finally,  the  federation  of 
States.  The  national  parties  have  looked  to  the  local  caucus  as 
the  ultimate  source  of  their  authority.  The  series  of  conven- 
tions culminating  in  the  great  National  Convention,  in  theory, 
speak  and  act  with  the  authority  of  the  local  caucus,  or  primary. 
Every  voter  is  assumed  to  belong  to  one  of  the  parties  and  to 
be  a  member  of  the  local  primary  of  the  party  whose  candidates 
he  usually  supports.  The  organization  is  voluntary  and  sep- 
arate from  the  government.  Party  conventions  speak  with  the 
authority  of  the  people,  who  nominate  candidates,  and,  by  means 
of  the  party  platform,  dictate  the  policy  of  the  government. 
Candidates  are  nominated  and  elected  as  pledged  to  carry  out 
policies  formulated  by  the  people's  representatives  in  party 
convention. 

This  is  quite  unlike  the  place  and  work  of  the  party  in  Eng- 
land, where  the  Cal)inet  has  always  held  the  supreme  party' 

505 


5o6  COMPARATIVE   FREE   GOVERNMENT 

authority  and  was  in  the  beginning  the  sole  party  organization. 
There  followed  a  lining  up  of  party  supporters  in  the  Ministry 
and  in  the  two  houses  of  Parliament ;  but  it  was  a  long  time 
before  the  organization  extended  further.  While  in  America 
the  political  party  is  an  agent  of  the  masses  of  the  people  for 
the  purpose  of  choosing  the  officials  and  controlling  the  govern- 
ment, in  England  the  party  is  the  government.  Cabinet 
government  is  literally  a  party  in  full  possession  of  political 
power.  It  can  brook  no  superior.  Outside  organizations  may 
strengthen  and  support,  they  cannot  control  it. 

Preliminary  Training.  —  Not  until  the  extension  of  the 
franchise  in  1832  did  the  organized  parties  include  those  out- 
side of  the  two  Houses  of  Parliament ;  but  the  people  in  general 
had  not  lacked  training  in  ways  of  working  together  for  definite 
ends.  For  centuries  they  had  been  developing  habits  of  local 
organization  for  religious,  -social,  industrial,  and  political  pur- 
poses. Long  before  Whigs  and  Tories  began  to  contend  to- 
gether in  Parliament,  Churchmen  and  Non-conformists  had 
parted  England  into  rival  religious  bodies,  and  at  no  time  have 
these  organizations  lacked  political  significance.  Both  Henry 
Vn  (1485-1509)  and  Henry  VHI  (1509-1547)  were  upon  occa- 
sion compelled  or  induced  to  forego  the  collection  of  taxes  voted 
by  Parliament,  on  account  of  the  organized  opposition  of  the 
taxpayer.  Such  early  training  in  united  resistance  to  govern- 
mental measures  prepared  the  people  for  more  direct  and 
effective  political  action.  The  American  colonists  were  prac- 
ticing a  very  ancient  custom  of  their  ancestors  when  they 
organized  resistance  to  the  collection  of  a  tax  of  two  pence  a 
pound  on  tea  in  Boston  harbor. 

Equally  significant  were  certain  combined  movements  among 
the  English  for  securing  jiositive  reforms.  Catholics  and  Non- 
conformists each  maintained  an  active,  organized  propaganda 
for  the  removal  of  legal  restrictions  upon  their  religious  beliefs; 
and  for  sixty  years  before  the  passage  of  the  first  Reform  Act 
many  organizations  for  the  securing  of  a  variety  of  reforms  and 
for  the  promotion  of  diverse  philanthropies  were  receiving  the 
attention  of  large  numbers  of  the  people.  It  is  sufilcient  to 
mention  the  sustained,  (organized,  and  successful  efforts  of  the 
associations  for  securing  the  abolition  of  the  slave  trade,  the 
prohibition  of  slavery  in  the  British  lOmpire,  and  the  abolition 


LOC.\L   PARTY   ORGANIZATION  507 

of  the  Corn  Laws,  —  all  with  a  more  or  less  definite  political 
aspect.  Other  societies  sprang  up  among  the  people  haxing  as 
one  object  among  others  the  gaining  of  more  direct  influence 
upon  the  government. 

The  Birmingham  Plan.  —  Candidates  for  Parhament  have 
long  been  accustomed  to  employ  agents  to  look  after  their 
elections.  With  the  extension  of  the  franchise  the  labors  of 
these  functionaries  were  greath*  increased.  Rival  agents  repre- 
senting opposing  candidates  busied  themselves  in  efforts  to 
secure  full  registration  of  the  voters  and  to  prevent  the  opposite 
party  from  gaining  the  benefit  of  false  registration.  During 
the  period  from  1832  to  1867  incipient  party  organization  was 
incident  to  the  process  of  registration  and  getting  out  a  full 
vote  at  the  election,  -\fter  the  passage  of  the  Act  of  1867, 
organization  in  both  parties  was  extended  and  improved  in 
an  effort  to  secure  and  retain  the  support  of  the  newly  enfran- 
chised laborers.  In  the  city  of  Birmingham  a  local  caucus  was 
adopted  which  ver\'  much  affected  the  organization  of  the 
Liberal  party.  The  new  law  gave  to  Birmingham  the  right  to 
elect  three  members  of  the  House  of  Commons  on  a  general 
ticket,  each  voter  being  limited  to  two  votes.  Those  two 
votes  might  both  be  given  to  one  candidate  or  one  to  each  of 
two  candidates.  The  intention  was  to  elect  one  member  from 
the  minority  party.  But  the  Liberal  party  managers  found  it 
possible  so  to  distribute  the  votes  of  their  supporters  in  the 
nineteen  different  wards  as  to  elect  all  three  of  their  candidates. 
To  accomplish  this  the  voters  were  enrolled  under  pledge  to  act 
as  directed  by  the  Central  Council  of  the  party.  By  this  method 
the  Liberals  elected  the  three  members  of  Parhament  and  also 
nearly  all  the  members  of  the  City  Council. 

The  National  Liberal  Federation.  —  The  Birmingham  Liberal 
Association  was  simplified  and  perfected  in  1S73  under  the  as- 
tute leadership  of  a  young  manufacturer,  Mr.  Joseph  Chamber- 
^lain.  It  was  Mr.  Chamberlain's  ambition  to  extend  the  Bir- 
mingham plan  of  local  party  organization  throughout  the  king- 
dom and  to  unite  all  local  organizations  in  a  National  Liberal 
Federation.  That  organization  was  effected  in  1S77  with  Mr. 
Chamberlain  as  its  first  president.  To  this  position  he  was 
annually  reelected  until  he  became  a  member  of  the  Gladstone 
Cabinet  in  188 1.     He  had  previously  entered  Parhament  as  an 


5o8  COMPARATIVE  FREE   GOVERNMENT 

already  recognized  national  party  leader.  As  a  cabinet  officer 
he  soon  became  a  promising  candidate  for  the  first  place  in  the 
Government. 

The  Chamberlain  plan  involved  the  enrollment  of  all  the 
supporters  of  the  Liberal  party  in  local  associations  united  by 
a  series  of  committees  and  councils  into  one  representative  body 
capable  of  giving  authoritative  expression  to  the  party  senti- 
ment. The  Federation  was  expected  to  assist  in  finding  candi- 
dates for  office  and  in  carrying  election,  but  its  primary  object 
was  to  serve  as  a  school  of  national  politics,  to  propagate  liberal 
principles,  to  discover  the  subjects  demanding  the  immediate 
action  of  Parliament  and  thus  to  guide  the  conduct  of  parliamen- 
tary leaders.  It  was,  in  effect,  designed  as  a  sort  of  second 
parliament  to  enable  the  democracy  to  formulate  and  express 
its  views.  Mr.  Chamberlain  was  accused  of  an  attempt  to 
Americanize  the  English  party,  to  build  up  a  machine  nominally 
based  upon  local  democratic  caucuses  but  really  playing  into 
the  hands  of  the  party  manipulator. 

Chamberlain  Deposed.  —  The  test  of  the  machine  came  in 
1886,  when  Gladstone  espoused  the  cause  of  Home  Rule  for 
Ireland  and  Chamberlain  refused  to  follow  his  party  leader. 
A  special  meeting  of  the  Council  of  the  National  Liberal  Fed- 
eration was  called  to  give  utterance  to  the  sentiment  of  the  party 
on  that  question.  In  the  vote  taken  at  a  full  and  rci)resentative 
meeting  the  Chamberlain  faction  was  overwhelmingly  defeated 
and  the  Gladstone  ministry  was  sustained.  Hitherto  the 
Federation  had  been  closely  associated  with  one  man  and  one 
city.  Organized  at  Birmingham,  the  central  office  had  remained 
in  that  city,  and  Mr.  Chamberlain  had  been  its  chief  sponsor. 
Immediately  upon  his  defeat  he  withdrew  from  the  Federation 
and  proceeded  to  organize  a  National  Liberal-Unionist  party 
on  the  same  general  model,  with  the  central  offices  in  London. 
The  new  organization  was  ra|)idly  extended.  As  the  recently 
enfranchised  agricultural  laborers  liad  furnished  a  large  and, 
fruitful  field  for  Liberal  organization,  it  now  appeared  as  one  of 
the  ironies  of  political  life  that  tlie  Liberal  ])arty  should  find  its 
chief  weapon  of  clcfense  in  the  system  devised  and  ])erfecte(l  by 
its  most  influential  opponent  and  former  leader. 

F^or  many  years  the  National  Liberal  Federation  was  inspired 
by,  and  is  still  influenced  by  the  Chamberlain  idea  of  a  separate 


LOCAL   PARTY   ORGANIZATION  509 

and  independent  organ  lo  formulate  and  express  party  opinion. 
Its  annual  meetings  became  occasions  for  adopting  resolutions 
on  a  great  variety  of  subjects  after  the  manner  of  American 
national  party  conventions.  All  the  good  doctrines  previously 
accepted  were  reaffirmed  and  others  were  added.  Finally,  at 
a  meeting  held  at  Newcastle  in  1891,  a  definite  "  platform  "  of 
great  length  was  adopted  and  Gladstone's  Annual  Address  ex- 
pounded its  various  "  planks."  All  this  could  take  place 
without  apparent  injury  to  the  party,  so  long  as  the  Liberals 
were  out  of  office.  But  within  a  few  months  a  cabinet  crisis 
placed  them  again  in  power  and  their  responsible  statesmen  were 
confronted  with  the  obligation  of  giving  answer  to  demands  for 
the  fulfillment  of  the  "  Newcastle  Program."  The  thing  was 
clearly  impossible ;  and  the  fact  that  an  apparently  responsible 
party  organization  had  adopted  such  a  platform  became  a  source 
of  embarrassment  and  weakness  to  the  Government. 

It  must  be  remembered  that  the  British  Cabinet  cannot  re- 
ceive dictation  from  an  outside  party  organization.  The 
Cabinet  forms  its  own  platform  in  the  a,ctual  tug  of  war  with 
its  opponents  in  the  House  of  Commons. 

A  problem  was  thus  presented  to  the  Liberal  leaders  :  how  to 
preserve  all  that  was  helpful  in  the  National  Liberal  Federation 
and  at  the  same  time  to  prevent  embarrassing  interference. 
This  has  been  accomplished  by  modifications  of  the  rules  and 
changes  in  the  central  offices.  The  constitution  of  the  Federa- 
tion under  the  new  order  consists  of  an  Executive  Committee, 
a  General  Committee,  and  a  Council.  The  Executive  Committee 
is  composed  of  the  officers  of  the  Federation  and  not  more  than 
twenty  other  members.  This  small  body  of  leaders  manages 
the  business  of  the  Federation.  The  General  Committee 
appoints  from  its  own  number  the  Executive  Committee  and 
is  itself  composed  of  numerous  representatives  from  local 
associations  and  all  the  Liberal  members  of  Parliament.  It  has 
few  duties  as  a  committee,  but  serves  as  a  connecting  link 
between  the  Executive  Committee  and  the  local  organizations. 
The  Council  includes  all  the  members  of  the  two  Committees 
with  additional  delegates  from  local  associations.  It  is  the  all- 
inclusive  Central  organization.'  The  new  rules  exclude  from 
the  representative  General  Council  discussion  or  voting  upon 

'  "Liberal  Year  Book,"  1912. 


5IO  CO]\irAFL\TIVE   FREE   GO\ERNMEXT 

any  matters  not  presented  by  the  General  Committee.  This 
committee,  consisting  of  more  than  a  thousand  members,  is 
entirely  too  large  for  deliberative  purposes.  It  has  been  found 
useful  in  extending  the  local  organizations  to  all  parts  of  the 
country  in  the  work  of  publishing  and  distributing  party  lit- 
erature and  in  gathering  information  on  the  trend  of  public 
sentiment  on  all  public  questions.  In  its  meetings  there  is  much 
greater  freedom  than  in  those  of  the  more  popular  Council. 
But  the  real  sifting  out  of  the  subjects  to  be  presented  to  the 
Council  is  left  to  an  Executive  Committee,  consisting  of  the 
five  officers  of  the  Federation  and  twenty  members  elected  each 
year  by  the  General  Committee.  This  small  committee  of 
twenty-five  is  the  important  factor  in  harmonizing  the  caucus 
and  the  Cabinet.  The  committee  arranges  that  the  caucus 
representatives  in  council  shall  act  only  on  such  matters  as 
shall  encourage  and  strengthen  the  party  in  Parliament.  The 
annual  meeting  of  the  Council  is  called  to  ratify  and  approve, 
but  not  to  oppose  the  program  of  the  leaders.  The  entire 
machinery,  however,  is  fitted  to  furnish  useful  guidance  to  the 
leaders  in  the  preparation  of  their  program.  Still  a  show  of 
independence  is  maintained.  A  rule  forbids  the  election  of  a 
member  of  Parliament  to  the  Executive  Committee  of  the 
P'ederation,  and  it  is  good  liberal  politics  to  assert  that  the  par- 
liamentary whips  never  seek  to  influence  the  committee.  This 
actual  subservience  of  the  Liberal  party  to  its  parliamentary 
leaders  is  contrasted  with  the  i^lace  of  the  Executive  Committee 
in  the  national  Conservative  organization  which  is  presided  over 
by  the  Chief  parliamentary  Whip.  In  practice,  however,  the 
same  result  is  attained. 

Superior  Organization  of  the  Conservative  Party.  —  The 
Tory  party  has  always  been  more  homogeneous  and  better 
organized  than  its  opponent.  The  local  magistrates  who  ruled 
the  counties  were  its  supporters.  The  squire  and  the  parson 
were  relied  u[)on  to  send  Tory  members  to  Parhamenl.  When 
the  right  of  suffrage  was  limited  lo  few,  members  were  often 
chosen  by  nomination  withoul  \hv  form  of  an  election.  In 
case  of  a  contested  eleclimi  ihc  candidates  employed  agents 
to  conduct  their  campaign. 

The  Agents  who  serxed  members  of  the  House  of  Commons 
by  looking  after  their  interests  in  elections  and  seeking  to  keep 


LOCAL  PARTY  ORGANIZATION         511 

their  chiefs  in  touch  with  their  supporters  furnished  the  nucleus 
for  the  first  form  of  party  organization  outside  of  ParHament. 
Tlie  employment  of  such  agents  was  at  first  temporary  —  for 
the  conduct  of  a  single  campaign ;  but  as  the  number  of  voters 
increased  the  service  became  permanent.  The  agents  became 
a  class  of  professional  politicians  devoting  their  lives  to  the 
service  of  their  party.  They  receive  small  return  for  their 
useful  labors  —  salaries  ranging  from  a  few  hundreds  of  dollars 
to  two  thousand  —  and  are  wholly  devoid  of  personal  ambition 
for  governmental  office.  Professing  no  political  opinions  of 
their  own,  they  become  highly  skilled  observers  of  the  opinions 
and  sentiments  of  others.  They  receive  without  question  the 
doctrines  of  the  party  leaders ;  they  distribute  party  literature 
and  arrange  meetings  for  party  lectures  or  campaign  speeches ; 
they  keep  an  open  eye  for  all  means  of  conciliating  voters  or 
strengthening  the  party  in  their  district  and  they  organize  and 
direct  the  work  of  the  voluntary,  unpaid  local  party  workers. 
When  the  time  comes  for  enrolling  all  party  supporters  in  local 
caucuses  or  associations,  the  said  agents  in  the  Conservative 
party  simply  add  this  duty  to  their  regular  work. 

The  Conservative  National  Union.  —  When  in  1867  the 
franchise  was  extended  to  laborers  in  industrial  centers,  the 
Conservative  party  was  already  prepared  to  enroll  the  new 
voters  in  local  associations.  Delegates  from  fifty-five  constit- 
uencies met  and  promptly  organized  the  Conservative  National 
Union  ten  years  before  Mr.  Chamberlain  effected  that  of  the 
National  Liberal  Federation  at  Birmingham.  So,  when  the 
Radicals  were  only  beginning  to  organize  the  local  caucus,  the 
Tories  were  already  perfecting  a  national  party  union  of  local 
associations,  growing  out  of  and  in  close  affiliation  with  the 
older  central  organization  of  the  party  in  Parhament. 

Organization  in  Parliament.  —  Before  the  organization  of 
national  unions  or  federations  parties  were  organized  in  Parlia- 
ment. Whips  had  been  employed  to  secure  the  continued  adher- 
ence of  the  other  party  members  in  Parliament.  A  Central 
Office  was  early  established  in  each  party  to  facilitate  the 
cooperation  of  the  leaders  and  the  Whips.  The  working  of 
this  central  office  in  its  relation  to  Parliament  has  been  described, 
but  its  relation  to  the  public  is  equally  important.  It  is  the 
high  mission  of  the  Chief  Whip  to  gain  for  his  party  continuous 


512  COMPARATIVE   FREE  GOVERNMENT 

public  support.  He  is  the  custodian  and  distributer  of  party 
funds,  and  his  advice  goes  far  in  the  bestowal  of  honors  or  office. 
The  central  office  is  a  meeting  place  for  candidates  seeking 
constituencies  and  for  constituencies  seeking  candidates.  It 
gives  direction  to  local  agents  in  matters  of  registration  and  the 
canvass  of  the  voters,  and  the  agents  employed  by  the  members 
of  the  House  of  Commons  are  thus  brought  into  close  relation 
to  the  office.  Local  agents  who  have  distinguished  themselves 
in  organizing  campaigns  and  in  carrying  elections  in  one  dis- 
trict are  employed  to  assist  in  other  districts.  Finally,  a  Chief 
Agent  was  selected  to  act  with  the  Chief  Whip  in  the  Central 
Office.  It  thus  becomes  possible  to  include  in  one  central  organ- 
ization all  the  supporters  of  the  party.  Paid  local  agents  were 
accustomed  to  extend  as  far  as  possible  the  spirit  and  practice 
of  voluntary  cooperation,  and  under  their  guidance  local  associ- 
ations grew  up  which  furnished  the  basis  for  national  organiza- 
tion.- The  Conservative  National  Union  arose  from  an  effort 
of  the  Central  office  to  enroll  the  new  voters  as  party  members. 
The  delegates  composing  the  Union  assembled,  not  to  express 
opinions,  which  might  embarrass  the  party  leaders,  but  to 
educate  and  train  the  adherents  of  the  party  and  to  devise  more 
effective  agencies  for  extending  its  influence.  As  one  of  the 
founders  expressed  it,  "  The  Union  had  been  organized  rather 
as  what  he  might  call  a  handmaid  to  the  party,  than  to  usurp 
the  functions  of  party  leadership."  ^  With  one  exception,  to  be 
described  later,  the  Conservative  National  Union  has  been 
kept  in  strict  subordination  to  the  Central  Office  of  parliamentary 
leaders.  The  permanent  secretary  of  the  Union  has  usually 
been  at  the  same  time  the  Chief  Agent  of  the  party.  The 
agents  are  subject  to  the  Whips  and  the  Whips  are  the  servants 
of  the  leaders.  Neither  the  Whips  nor  the  agents  have  a  right 
to  promote  their  own  private  opinions.  It  is  tlu-ir  duty  to  give 
effect  to  cabinet  policies  as  expressed  by  llie  Prime  Minister 
or  the  official  leaders. 

Contrast  between  Caucus  and  Central  Office.  The  Birming- 
ham Caucus  embodied  a  radically  different  idea.  It  was  or- 
ganized with  the  intention  of  promoting  free  and  independent 
discussion  of  party  policies  and  of  giving,  in  the  National  Coun- 
cil of  Delegates,  an  authoritative  expression  of  party  opinions. 

'  Lowell,  "The  Government  of  England,"  Vol.  I,  p.  537. 


LOCAL   PARTY  ORGANIZATION  513 

The  Liberal  party  already  had  a  Central  Office  similar  to  that 
of  the  Tory  party.  The  Caucus  was  therefore  in  a  sense  a 
rival  to  the  older  organization.  Through  the  office  of  the 
Chief  Whip,  assisted  by  the  agents  of  the  party,  the  leaders 
were  already  kept  in  constant  touch  with  the  constituencies. 
It  was  the  duty  of  the  local  agents  to  inform  the  leaders  of  the 
trend  of  public  opinion.  From  such  a  source  the  leaders  could 
receive  guidance  free  from  the  implication  of  dictation.  But 
the  caucus  proposed  to  dictate  policies  and  thus  became  not 
only  a  rival,  but  a  discordant  organization.  By  long  process 
of  adjustment,  the  discord  has  been  removed  in  the  National 
Liberal  Federation,  and,  like  the  Conservative  National  Union, 
it  has  become  a  mere  handmaid  to  the  Central  Office  of  par- 
liamentary leaders.  In  both  parties  the  Chief  Whip  remains 
the  head  of  the  party  organization  in  Parliament  and  in  the 
voting  precincts. 

An  episode  in  the  history  of  the  Tory  party  throws  added 
light  on  the  relation  of  the  central  parhamentary  organization 
to  the  National  Union.  In  1883  the  National  Liberal  Federation 
with  its  popular  local  caucuses  was  apparently  giving  strength 
and  efficiency  to  the  Liberal  party.  By  means  of  the  organization 
Mr.  Chamberlain  was  being  rapidly  advanced  to  the  first  place 
in  the  leadership  of  his  party.  There  was  discontent  in  the  Tory 
party  because  their  National  Union  was  kept  under  the  control 
of  the  Central  Office  of  leaders.  Whips,  and  paid  agents.  This 
condition  furnished  the  opportunity  for  the  promotion  of  Lord 
Randolph  Churchill  to  a  leading  place  in  the  Tory  Cabinet. 
He  gained  partial  control  of  the  Conservative  National  Union 
and  proceeded  to  infuse  into  it  the  spirit  and  purpose  of  the 
Birmingham  Caucus.  This  led  to  an  acute  conflict  with  the 
leaders  of  his  own  party  over  the  question  of  the  relation  of  the 
Union  to  the  older  parliamentary  organization.  Lord  Randolph 
was  defeated  in  his  attempt  to  transfer  party  control  to  the 
National  Union,  but,  like  Mr.  Chamberlain,  he  gained  a  per- 
sonal triumph  by  securing  a  place  in  the  Cabinet. 

This  incident  furnishes  additional  proof  in  support  of  the 
proposition  that  the  Cabinet  itself  is  the  sole  authoritative  party 
organization.  The  Whips  are  the  servants  of  the  Cabinet.  The 
Chief  Whip  in  each  party  organizes  and  directs  the  paid  agents 
of  the  party.     Through  the  use  of  the  whips  and  the  agents  the 


514  COMPAR.\TIVE   FREE   GOVERNMENT 

leaders  may  extend  the  organization  so  as  to  include  as  members 
of  local  clubs  or  associations  all  party  supporters.  The  local 
associations  may  be  induced  to  send  delegates  to  the  National 
Union  or  the  Council  to  receive  instruction  from  the  party 
leaders,  to  ratify  the  policies  adopted,  to  furnish  inspiration 
and  party  enthusiasm ;  but  thus  far  the  experience  in  both 
parties  seems  to  prove  that  the  national  organization  cannot 
dictate  party  policy.  As  long  as  the  Cabinet  is  the  Government 
it  cannot  be  subject  to  an  external  organization.  Except  dur- 
ing the  two  years  of  Lord  Randolph  Churchill's  ascendancy,  the 
Conservative  party  organization  has  been  under  the  control  of 
the  Central  Office  of  which  the  Chief  Whip  is  ex  officio  chairman. 
The  Liberal  party  became  locally  organized  on  a  contradictory 
principle,  and  has  attained  harmony  and  efficiency  by  eliminat- 
ing the  idea  of  caucus  dictation  to  party  leaders. 

The  local  organizations  in  so  far  as  they  work  in  harmony 
with  the  agents  and  the  Chief  Whip  are  a  source  of  great  strength 
to  the  leaders.  While  they  may  not  dictate  a  policy,  they  do 
greatly  aid  in  furnishing  information  and  in  extending  the  field 
of  parliamentary  debate.  Millions  of  party  members  acquire 
the  habit  of  following  the  debates  in  Parliament.  They  be- 
come educated  in  respect  to  public  questions,  and  competent 
to  furnish  useful  guidance  to  the  party  leaders. 

English  and  American  Party  Methods. — ^A  few  words  by 
way  of  comparison  of  campaign  methods  in  England  and  the 
United  States  may  well  be  added.  The  Americans  know  in 
advance  the  date  of  the  campaign,  which  comes  at  the  end  of  a 
four-year  period.  An  entire  year  is  devoted  to  special  prepa- 
ration for  the  event.  The  intervening  three  years  are  designated 
as  "  ofT  years  "  in  politics.  Political  interest  is  made  intermit- 
tent by  fixed  rule.  'Ihe  people  become  accustomed  to  alternate 
periods  of  relaxation  and  stress.  The  iMiglish  have  no  such 
periods  of  rest  from  party  anxiety.  The  campaign  may  be 
delayed  for  five  years,  and  it  may  occur  on  any  day.  Immedi- 
ately following  the  organization  of  a  newly  elected  House  of 
Commons  the  defeated  ])arty  begins  the  preparations  for 
another  a[)peal  to  the  |)coi)lc.  Parly  platforms  are  all  the  time 
in  [)rocess  of  ex'olulion  in  ilic  House  of  Commons.  By-elections 
arc  of  frequent  occurrence  and  party  leaders  make  much  of 
these  as  indicating  the  trend  of  public  o|)ini()n.  The  English 
live  in  an  atmos])here  of  political  agitation. 


LOCAL   PARTY  ORGANIZATION  515 

Another  contrast  in  campaign  methods  arises  from  the  fact 
that  in  the  one  government  political  power  is  centrahzed,  while 
in  the  other  it  is  diffused.  From  the  nature  of  their  government 
the  English  have  the  shortest  possible  ballot.  The  voter  ex- 
hausts his  possibilities  for  the  election  of  his  rulers  by  casting 
a  vote  for  one  member  of  the  House  of  Commons.  No  other 
officers  are  chosen  at  a  Parliamentary  Election.  The  electors 
choose  the  members  of  the  House  in  separate  districts  and  the 
House  governs  the  country.  Interest  in  the  campaign  is  thus 
concentrated  upon  the  party  candidates  in  the  various  districts. 
In  America  party  interests  are  diffused  among  numerous  state 
and  national  candidates  to  be  voted  for  at  a  single  election. 
Americans  extend  the  active  campaign  over  four  or  five  months. 
In  England  it  is  Umited  to  a  few  weeks,  though  party  machinery 
is  always  kept  in  order  and  the  campaign  may  be  said  to  be 
continuous.  When  the  dissolution  of  Parliament  actually 
occurs,  the  closely  contested  districts  which  are  relied  upon  to 
determine  the  pohtics  of  the  House  of  Commons  are  subjected 
to  a  few  days  of  most  active  and  intense  campaigning. 

REFERENCES 

Ogg.     The  Governments  of  Europe,  Chap.  VII. 

OsTROGORSKi.     Democracy  and  the  Organization  of  Political  Parties,  Vol. 

I,  Parts  II-III. 
Report  of  the  Annual  Conference  of  the  Labor  Party. 
RosEBERY.     Life  of  Lord  Randolph  Churchill. 
Trevelyan.     England  in  the  Age  of  Walpole. 
Walpole.     History  of  England  from  181 5. 
Watson.     The  National  Liberal  Federation  from  its  Commencement  to  the 

General  Election  of  igo6. 


CHAPTER  XLII 

Religion  and  the  Church 

In  the  foregoing  discussion  frequent  references  have  been 
made  to  reUgion  and  to  church  organizations.  ReHgious  con- 
troversy was  a  cardinal  factor  in  the  origin  of  parties,  and  it 
remains  a  subject  of  great  importance  in  present-day  party 
conflicts.  It  is  not  possible  to  understand  the  government  of 
England  without  a  knowledge  of  the  part  of  the  Church  in  its 
historical  development.  The  few  facts  here  recorded  are  in- 
tended to  throw  light  on  the  present  relation  of  the  Church 
to  the  government. 

Before  the  state  was  centrally  organized,  England  possessed 
a  centrally  organized  Church,  with  the  Archbishop  of  Canter- 
bury at  its  head.^  In  a  way  it  furnished  the  model  and  was 
itself  a  chief  agency  in  effecting  a  union  of  the  petty  kingdoms 
into  one  united  state.  Many  of  the  early  statesmen  were 
bishops  and  other  church  dignitaries  who  cooperated  with  the 
West  Saxon  rulers  to  promote  that  union.  Church  and  state 
became  and  remained  fused  together  as  one  government  until 
after  the  Norman  Conquest  in  1066.  The  higher  clergy  were 
by  right  or  by  custom  members  of  the  King's  Council.  The 
bishop  sat  with  the  earl  as  presiding  officer  in  the  County 
Court.  In  the  lower  courts  of  the  hundred  and  the  vil,  or 
townshij),  church  affairs  were  administered  along  with  other 
local   Ijusiness. 

Relations  of  Church  and  State.  —  A  radical  change  was 
therefore  effected  when  William  (he  Conqueror  separated  the 
church  courts  from  the  secular  courts,  eliminated  the  bishops 
from  c(junty  courts,  relegated  matters  of  rtligion  formerly 
adjudicated  in  county  and  hundred  courts  to  the  hands  of  the 
bishops  and  lower  clergy.  One  apparent  object  of  the  king  in 
separating  church  courts  from  .secular  courts  was  that  he  might 

'  Wakcman,  "History  of  the  Clnirch  of  ICngland,"  Chaps.  I-III. 
S16 


RELIGION  AND  THE   CHURCH  517 

gain  more  complete  control  over  both,  that  he  might  use  both  as 
a  weapon  against  the  nobility.  Later  changes,  as  has  been 
pointed  out,  completely  effaced  the  functions  of  the  hun- 
dred. The  township  remained  as  an  important  local  insti- 
tution; though,  because  of  the  fact  that  much  of  the  secular 
business  passed  into  the  hands  of  local  magistrates  and  the 
county  court,  the  term  "  Parish,"  which  had  been  used  to 
denote  the  rehgious  functions  of  the  township,  gradually  dis- 
placed the  older  term.  But  in  the  parish  there  has  never  been 
a  complete  separation  of  rehgious  from  secular  affairs. 

England  was  at  the  time  a  part  of  western  Christendom  of 
which  the  Pope  of  Rome  was  the  recognized  head.  The  popes 
habitually  asserted  a  larger  measure  of  authority  over  the  sub- 
jects of  kings  and  emperors  than  these  were  willing  to  concede. 
Separate  church  courts  in  England  might  readily  have  been  made 
a  tool  in  the  hands  of  the  popes  for  encroaching  upon  the  king's 
authority.  This  was  guarded  against  in  many  ways.  The 
kings  for  the  most  part  maintained  the  chief  control  over  church 
appointments.  They  carefully  examined  all  communications 
between  the  Pope  and  the  national  Church.  WiUiam  I  (1066- 
1087)  and  Henry  11  (1154-1189)  asserted  supreme  rights  over 
all  questions  of  appeal  from  the  bishops'  court  in  England  to 
the  See  of  Rome.  Carried  to  its  logical  conclusion,  this  systerri 
would  have  given  the  King  in  Council  full  power  over  the 
English  clergy.  To  avoid  this  result  Becket,  the  Archbishop 
of  Canterbury,  resisted  Henry  II  to  the  death.  The  duel  be- 
tween King  and  Archbishop  was  a  drawn  battle.  The  church 
courts  retained  a  modicum  of  independent  power  and  the 
popes  a  limited  right  of  interference  in  English  affairs,  but  by 
far  the  greater  authority  over  the  Church  remained  with  the 
King  in  Council. 

No  detailed  account  can  be  given  here  of  the  part  which  the 
Church  has  played  in  the  conflicts  which  have  led  to  the  modern 
Constitution.  During  the  earlier  part  of  the  four  hundred 
years  of  strife  between  king  and  armed  nobility,  the  Church 
at  times  held  the  balance  of  power.  Throughout  the  disputed 
reign  of  Stephen  and  Matilda  (1135-1154)  the  Church  was  a 
dominating  factor  in  the  government.  The  strife  which  led  to 
the  exacting  of  Magna  Charta  from  King  John  began  with  a 
dispute  among  the  King,  the  Pope,  and  the  English  clergy  over 


5i8  COMPARATR-E  FREE   GO\^RNMENT 

the  election  of  the  Archbishop  of  Canterbury.  Finally,  when 
King  and  Pope  united  their  forces,  the  English  clergy,  cooper- 
ating with  the  armed  nobility,  controlled  the  situation.  Again, 
when  Henry  III  (i 216-1272)  fell  under  the  influence  of  the  Pope 
and  the  foreign  faction  of  nobles,  the  English  clergy  united 
with  the  home  faction  of  the  barons  and  exacted  from  the  King 
the  Provisions  of  Oxford,  in  1258. 

But  the  ordinary  relation  between  bishops  and  barons  was 
that  of  rivalry,  jealousy,  and  hostility.  The  king  usually  con- 
manded  the  support  of  the  higher  clergy  against  the  great  lords. 
After  the  reign  of  Edward  I  (i 272-1307)  a  distinct  decline  in  the 
independent  power  of  the  bishops  followed.  Such  power  as 
they  had  was  usually  at  the  disposal  of  the  king.  The  Church 
was  becoming  rich,  timid,  and  corrupt.  The  great  Wyclif 
revival  during  the  last  half  of  the  fourteenth  century  had  the 
effect  to  weaken  still  further  the  clerical  power.  The  religion 
of  the  masses  became  pitted  against  the  ecclesiastical  organ- 
ization. Henry  VH  (1485-1509)  found  the  Church  a  con- 
venient tool  to  employ  in  accomplishing  the  complete  subju- 
gation of  the  feudal  nobility.  Henry  VHI  (1509-1540)  took 
advantage  of  the  great  Protestant  uprising  to  advance  the 
Crown  to  the  position  of  chief  authority  in  the  Church.  Arbi- 
trary courts  were  created  to  displace  papal  dominance.  Re- 
ligious houses  were  destroyed  and  their  property  confiscated. 

The  transition  from  Roman  Catholicism  to  Protestantism 
was  thus  accompanied  by  a  transfer  of  the  enormous  property 
endowment  of  the  Church  to  the  Crown,  but  no  step  was  taken 
towards  disestablishment.  In  fact.  Church  and  state  in  the 
higher  organization  of  the  Government  became  more  closely 
fused  together.  In  law,  as  well  as  in  fact,  the  powers  previously 
claimed  by  the  Pope  now  belonged  to  the  King,  and  the  monarch 
became  the  head  of  the  Church.  The  King  in  Parliament  was 
made  the  supreme  lawmaking  jwwer  in  all  matters  of  religious 
belief  and  church  discipline,  while  the  King's  Privy  Council 
became  and  remained  the  highest  court  of  appeal  in  the  admin- 
istration of  church  affairs.  The  great  revival  of  religion  which 
accompanied  the  advent  of  Protestantism  tended  greatly  to 
magnify  the  importance  of  the  Church.  The  support  of  bishops 
and  clergy  counted  for  much  in  (he  government.  Had  it  been 
possible  to  attain  a   united  and   harmonious  church   with   all 


RELIGION   AND   THE   CHURCH  519 

powers  centering  in  the  Crown,  its  position  would  have  been 
invuhierablc.  But  just  when  Henry  VIII  had  secured  for  the 
Crown  a  maximum  of  power  the  country  became  permanently 
divided  on  questions  of  religion.  The  chapter  on  the  rise  of 
political  parties  shows  that  at  first  Catholics  and  Protestants 
contended  for  supremacy.  No  sooner  had  Protestants  gained 
ascendancy  than  a  Puritan  party  arose  within  their  own  body 
to  dispute  with  the  monarch  the  control  of  the  Church.  So 
fierce  was  this  struggle  of  the  Puritan  Revolution  that  in  its 
course  both  a  king  and  an  archbishop  were  executed  by  act  of 
a  Puritan  Parliament.  When  monarchy  was  again  restored, 
in  1660,  it  was  with  a  permanently  divided  Church.  Half  the 
people  were  dissenters,  or  non-conformists.  An  effort  on  the 
part  of  James  II  to  revive  Catholicism  led  to  a  temporary  co- 
operation between  dissenters  and  churchmen  whereby  the 
Catholic  dynasty  was  rejected  and  two  Protestant  monarchs 
were  introduced  from  the  Continent. 

The  effect  of  the  cooperation  between  dissenters  and  bishops 
first  in  the  exclusion  of  James  II  and  the  calling  of  William  and 
Mary  to  the  throne  and  later  in  the  passing  of  the  crown  to 
George  I,  was  greatly  to  diminish  the  violence  of  religious  con- 
troversy. The  division  remained,  but  never  again  did  either 
party  presume  to  destroy  the  other  by  force. 

Church  Organization  and  Disestablishment.  —  The  organ- 
ization of  the  Church  to-day  and  its  relation  to  the  government 
can  be  understood  only  by  reference  to  the  remote  facts  in  its 
history.  There  are  two  archbishops.  One  is  the  Archbishop 
of  Canterbury  who  has  the  title  of  "  Primate  of  all  England  " ; 
the  other  is  the  Archbishop  of  York  who  is  "  Primate  of  Eng- 
land." This  arises  from  the  fact  that  pagan  England  was  con- 
verted by  two  groups  of  missionaries,  one  from  Ireland,  working 
in  the  north,  and  the  other  group  sent  directly  from  Rome  and 
beginning  work  at  Canterbury.  In  the  final  adjustment  be- 
tween these  competing  authorities  two  archbishops  were  recog- 
nized with  two  convocations,  or  synods,  which  remain  to  the 
present  day.  The  synod  of  York  is  but  a  feeble  transcript  of 
the  chief  convocation  of  the  South.  As  to  the  time  and  the 
manner  of  organization  of  the  Convocation  of  Canterbury 
historians  are  not  informed.  It  was  an  institution  of  importance 
as  early  as  the  time  of  Edward  I  (i 272-1307). 


520  COMPARATIVE  FREE   GOVERNMENT 

The  Convocation  consists  of  two  houses,  an  upper  house  of 
bishops  and  a  lower  house  made  up  of  the  deans  and  canons  of  the 
cathedrals,  archdeacons,  and  proctors.  The  two  houses  transact 
part  of  their  business  in  joint  session.  Convocation  is  the  chief 
legislative  assembly  of  the  Church,  although  at  the  present  day 
it  has  no  really  independent  powers.  It  meets  at  the  call  of 
the  Crown ;  takes  action  upon  such  subjects  as  the  Crown 
suggests,  and  its  acts  become  valid  as  a  part  of  the  law  of  the 
land  only  by  the  approval  of  Parliament.  The  Prayer  Book  of 
1549  was  formulated  by  a  Church  Commission  and  was  then 
adopted  by  Parliament.  In  like  manner  were  enacted  the 
Thirty-Nine  Articles  of  1571  and  the  revised  Prayer  Book  of 
166 1.  Parliament  is  the  real  lawmaking  body  for  the  Church 
as  for  the  nation.  The  clergy  are  without  independent  power 
either  in  matters  of  belief  or  of  discipline.  Should  the  Church 
be  disestablished,  the  bishops  would  leave  the  House  of  Lords 
and  the  Church  synods  would  come  into  complete  control  of 
church  government.  For  this  reason  some  of  the  clergy  favor 
disestablishment. 

Another  change  also  would  come  with  disestablishment  which 
would  be  very  generally  approved  by  the  clergy.  The  church 
courts  to-day  have  little  elTective  power  or  influence.  They 
are  subject  to  the  secular  courts  and  all  appeals  of  important 
matters  go  to  the  Privy  Council  whose  members  may  be  non- 
Churchmen.  After  disestablishment  all  questions  would  be 
decided  according  to  rules  adojjted  by  the  Church  and  officers 
of  its  own  choosing. 

The  important  offices  of  the  Church  are  now  filled  upon  the 
recommendation  of  persons  who  are  or  may  be  non-Churchmen. 
Bishojjs  and  deans  are  apj)()inted  by  the  Crown  upon  the  recom- 
mendation of  the  Prime  Minister.  Many  of  the  canons  are  also 
thus  chosen.  The  rectors,  vicars,  and  perpetual  curates  are  in 
large  part  appointed  by  the  Lord  High  Chancellor,  and  others 
by  [)rivate  j)ersons  who  have  by  law  the  right  to  recommend 
for  church  office.  These  aflvowsons,  or  rights  to  present  to 
church  livings,  are  in  law  private  j)roperty  and  may  pass  by 
inheritance  or  by  contract  as  other  j)roperty.  "  They  may  pass 
into  the  hands  of  Dissenters,  Jews,  Turks,  infidels  and  heretics, 
who  can  nevertheless  present  to  the  living."  '     Such  a  system 

'  Lowell,  "The  tJovernmeiil  of  Kngland,"  Vol.  II,  p.  j66. 


RELIGION  AND   THE   CHURCH  52 1 

would  never  be  tolerated  except  for  the  fact  that  it  is  an  in- 
heritance from  the  middle  ages.  Disestablishment  would  surely 
give  to  the  church  the  right  to  select  its  own  religious  leaders. 
Why,  then,  does  the  great  body  of  Churchmen  resist  disestab- 
lishment? The  prestige  of  the  name,  "state  Church,"  is  a 
factor  of  importance.  Crown  and  Church  are  linked  together 
in  the  glorious  past.  The  state  Church  still  maintains  the 
fiction  that  all  the  inhabitants  of  a  parish  who  have  escaped 
formal  excommunication  are  ever  and  always  members  of  the 
Church  with  a  right  to  its  ministrations.  To  sever  the  Church 
from  the  state  would  destroy  this  fiction.  The  Church  in 
England,  like  the  Episcopal  Church  in  the  United  States  and 
Canada,  would  become  one  among  numerous  religious  sects. 
Perhaps  a  more  important  reason  for  continuing  the  old  system 
is  the  question  of  title  to  church  property.  Much  property 
has  already  been  taken  from  the  Church.  Until  a  recent  date 
Dissenters  were  compelled  with  others  to  pay  taxes  for  the 
support  of  the  Church.  It  still  owns  much  land  from  which  it 
receives  the  entire  rental.  From  other  lands  it  receives  tithes. 
Then  there  are  the  great  cathedrals  in  which  the  nation  as  a 
whole,  regardless  of  special  church  affiliation,  lays  claim  to  a 
common  proprietary  interest.  These  conflicting  claims  to 
property  tend  to  unite  the  people  in  the  maintenance  of  the 
peculiar  and  illogical  relations  of  the  Church  to  the  state  which 
are  inherited  from  the  past. 

In  Scotland,  Ireland,  and  Wales  quite  a  different  and  peculiar 
history  pertains  to  the  Church.  While  the  English  Roman 
Catholic  Church  was  becoming  the  Protestant  Episcopal 
Church,  Scotland  was  becoming  Protestant  and  Presbyterian 
and  stoutly  resisted  the  imposition  of  the  English  Establish- 
ment. In  the  war  between  King  and  Parliament  in  England 
the  Scots  sided  with  the  Puritans  and  were  an  important  factor 
in  the  outcome.  When  Parliament  finally  triumphed  over  the 
Stuart  monarchs  in  1688  the  state  Church  as  by  law  established 
in  Scotland  was  the  Presbyterian  organization,  and  one  division 
of  Presbyterianism  is  to-day  the  state  Church. 

The  advent  of  Protestantism  in  England  coincided  with  a 
bitter  conflict  between  English  and  Irish.  The  attempt  to 
force  upon  the  Irish  the  use  of  the  new  English  Prayer  Book 
tended  to  make  the  masses  of  the  Irish  people  belligerently 


522  COMPARATIVE   FREE   GOVERNMENT 

Catholic.  Even  the  English  colonists  in  the  north  united  with 
their  Celtic  neighbors  in  resistance  to  the  alien  form  of  religion 
and  were  drawn  into  the  Irish  Catholic  Church.  Later  impor- 
tations of  Presbyterians  from  Scotland  and  from  England  served 
to  renew  the  old  conflict.  Religious  fanaticism  was  thus  added 
to  the  old  race  hatreds.  Crimes  of  massacre  and  rapine  were 
committed  in  the  name  of  religion.  Stuart  monarchs,  hard 
pressed  by  their  English  and  Scotch  subjects,  looked  for  aid  to 
Ireland.  James  II  driven  from  his  English  throne  sought  aid 
of  the  French  and  the  Irish  to  bolster  up  his  power  in  Ireland. 
The  Ulster  Protestants  resisted  his  army  and  a  decisive  battle, 
fought  July  12,  1690,  estabUshed  English  authority  over  the 
whole  of  the  island.  But  much  of  the  old  bitterness  has  sur- 
vived. The  anniversary  of  the  battle  of  the  Boyne  is  still 
observed  by  an  order  of  Protestant  Irish  "  Orangemen,"  to 
commemorate  the  triumph  of  the  supporters  of  William  of 
Orange  over  James  II.  The  English  Episcopal  Church  was 
forced  upon  Ireland,  as  it  was  upon  Scotland. 

While  the  Scots  were  able  to  rid  themselves  of  the  burden 
of  a  church  estaljlishment  not  in  harmony  with  the  national 
sentiment,  the  less  fortunate  Irish  remained  restive  and  re- 
fractory under  the  incubus  until  relieved  by  Act  of  Parliament 
in  1868.  Since  that  date  there  has  been  no  state  Church  in 
Ireland. 

The  Welsh  became  loyal  sul)jects  of  the  British  crown  long 
before  the  rise  of  Protestantism  and  accepted  the  change  along 
with  the  English.  Although  in  the  later  subdivision  within 
the  Church  the  Welsh  almost  wholly  adhered  to  the  Dissenters, 
the  I">pisc()i)al  Establishment  was  maintained  in  the  province 
until  llu-  \'ear  1914. 

REFERENCES 

Green.     Slmrt  Ilhlory  of  the  F.niilisli  Prop!,;  Chaps.  VII,  VIIT. 

Green.     T/ic  Mukiuji  of  /uii^laml,  Chu]).  VII. 

IIu.NT.     History  of  the  lini:,lish  Cliurdt. 

\tu\v\AA..     The  Govcrnmrut  of  England,  XI, I,  XI, 1 1,  XI,11I. 

Tkkvki.yan.     Engliind  (hidrr  tlir  Stuarts. 

Tkkvelyan.     Kniiland  in  tlir  Time  of  Wydijfe. 

Wakeman.     Tiic  Cliurdt  of  England,  kjo.S,  Chiips.  I-III. 


CHAPTER  XLIII 

The  Courts  and  Local  Government 

Nearly  all  the  facts  here  presented  appear  in  former  chapters. 
They  are  repeated  for  purposes  of  review  and  especially  to  show 
their  relations  to  the  differentiation  of  the  three  departments 
of  government,  —  legislative,  executive,  and  judicial. 

At  first  there  was  no  differentiation.  King's  Council  and 
county  and  hundred  courts  attended  to  all  sorts  of  governmental 
business.  The  separate  church  courts  of  Wilham  the  Conqueror 
stand  as  an  important  landmark  in  the  separation  of  judicial 
from  other  functions.  A  hundred  years  later  further  progress 
was  shown  in  the  system  of  Henry  H  (ii 54-1 187),  who  made 
use  of  two  councils,  the  full  assembly  of  all  the  notables, 
both  spiritual  and  secular,  and  a  smaller  body,  the  curia  regis, 
through  whose  agency  he  administers  his  government.  The 
larger  assembly  is  especially  associated  with  important  legis- 
lation and  the  smaller  with  administrative  and  judicial  functions. 
The  king's  quarrel  with  the  archbishop,  Thomas  a  Becket,  over 
the  right  of  appeal  to  the  Pope  of  Rome  suggests  the  importanre 
of  a  separate  judiciary.  Still  no  sharp  line  of  differentiation  of 
functions  had  yet  been  estabUshed.  The  monarch  through  the 
smaller  council,  or  curia  regis,  could  issue  orders  which  had  the 
force  of  law.  The  members  of  the  council  in  county  courts 
decided  cases  of  law,  administered  the  law  of  the  land,  and 
granted  petitions  for  changes  in  local  by-laws. 

During  the  next  century,  a  really  distinct  judiciary  was 
evolved.  Committees  of  the  curia  regis  became  continuously 
occupied  in  discovering  and  applying  the  rules  of  law.  One 
committee  attended  especially  to  finance  and  taxation  ;  another 
to  cases  of  conflicting  rights  between  citizens;  a  third  to  of- 
fenses against  the  crown  and  those  affecting  the  rights  of  the 
crown.  In  the  system  of  Edward  I  (i 272-1307),  the  old  curia 
regis  is  eliminated  and  in  its  place  are  the  three  courts  of  com- 

523 


524  COMPAR.\TIVE   FREE   GOVERNMENT 

mon  law,  corresponding  to  the  three  committees  just  mentioned, 
the  court  of  the  Exchequer,  the  court  of  Common  Pleas,  and 
the  Court  of  the  King's  Bench.  These  are  entirely  occupied 
with  judicial  business  and  have  become  separated  from  the 
king's  council. 

Origin  of  an  Independent  Judiciary.  —  When  the  curia  regis 
thus  became  transmuted  into  the  common  law  courts,  its  place 
was  taken  by  another  body,  which  later  became  known  as  the 
Privy  Council.  The  king  in  this  smaller  council,  as  well  as 
the  king  in  the  greater  council,  later  called  Parliament,  embodied 
all  the  high  powers  of  government.  Each  council  remained  a 
supreme  court  of  appeal  from  the  common  law  courts,  while  the 
lower  courts  gave  legal  effect  to  the  customary  rules  of  conduct 
found  among  the  people.  In  cases  of  injustice  the  high  court  of 
the  King  in  Parliament  or  that  of  the  King  in  Council  amended 
the  law  or  ordered  a  different  ruling  or  interpretation.  With  a 
rapidly  changing  society  the  rigid  rules  of  the  common  law 
courts  caused  continuous  friction  and  injustice.  So  constant 
became  the  appeals  to  the  king  to  give  relief  against  the  common 
law  rules,  that  it  led  to  the  establishment  of  a  new  court  of 
equity  with  more  summary  and  less  rigid  rules  of  procedure. 
Yet  the  King  in  Council  still  remained  the  highest  court  of 
appeal.  There  seemed  to  be  no  limit  to  the  power  of  the  king  to 
call  into  existence  new  courts  to  serve  his  purposes.  Henry 
VII  (1487-1509)  by  the  use  of  an  arbitrary  court  called  the 
Slar  Chamber  humiUated  the  great  lords  and  enriched  his 
treasury.  Henry  VIII  (1509-1547)  by  means  of  a  newly  created 
court  rid  himself  of  an  obnoxious  wife  and  made  himself  the 
head  of  the  Church.  Charles  I  (1625-1649)  revived  the  Star 
Chamber  and  called  into  existence  various  other  high  courts 
that  gave  him  despotic  j)owers  in  the  north  of  England,  in  Ire- 
land, and  over  church  matters  for  the  United  Kingdom.  One 
of  the  early  acts  of  the  Long  Parliament  was  to  compel  Charles 
I  to  sign  a  bill  abolishing  the  Star  Chamber  and  all  the  arbitrary 
courts  and  denying  to  the  monarch  the  right  to  create  such 
courts.  A  few  years  later  Charles  himself  was  tried,  condemned, 
and  executed  by  order  of  a  special  court  which  the  House  of 
Commons  had  set  up.  There  was  no  such  thing  as  a  permanent 
independent  judiciary  until  after  the  Crown  became  subjected 
to  the  rule  of  ParMamonl.     James  II  (1O85-1689)  found  in  the 


THE  COURTS  AND  LOCAL   GOVERNMENT  525 

common  law  courts  his  last  and  most  effective  tool  for  royal 
tyranny.     When  these  failed  him  he  fled  for  his  life. 

The  Act  of  Settlement,  of  1701,  deprived  the  monarch  of  the 
power  to  remove  judges  from  office  except  upon  the  petition  of 
the  two  houses  of  Parliament.  England  has  since  enjoyed  an 
independent  judiciary  removed,  for  the  most  part,  from  partisan 
strife.  No  governmental  act  is  more  significant  in  the  trans- 
formation of  a  limited  monarchy  into  a  parliamentary  monarchy  ■ 
than  is  this  Act  of  Settlement,  which  divested  the  crown  of  the 
privilege  of  removing  judges.  This  power,  passing  from  the 
sovereign  to  the  two  houses,  carries  with  it  the  subjection  of  the 
Executive  to  the  law  of  the  land.  It  is  no  longer  possible  for 
the  monarch  to  call  judges  and  jurors  to  his  aid  in  order  to  per- 
vert the  law  or  prevent  its  execution.  By  means  of  this  Act  the 
judiciary  becomes  really  independent.  The  judges  are  no  longer 
subject  to  the  arbitrary  dictation  of  either  the  monarch  or  the 
houses  of  parliament.  Parhament,  indeed,  may  at  any  time 
change  the  law  and  the  courts  will  enforce  the  new  legislation. 
The  judges  are  themselves  subject  to  the  law.  It  is  their  duty 
to  apply  the  law  as  they  find  it,  assuming  no  responsibiUty  for 
its  appearance  on  the  statute  books.  The  independence  of  the 
EngUsh  judiciary  means  that  the  magistrates  are  entirely  sub- 
ject to  the  lawmaking  power.  In  theory,  and  as  far  as  possible 
in  fact,  the  separation  is  complete.  The  courts  have  no  right 
to  change  the  law. 

The  ancient  fusion  of  powers  is  still  reflected,  however,  in  the 
forms  of  organization.  The  complete  union  of  all  the  govern- 
mental forces  is  personified  in  the  Lord  High  Chancellor.  He  is 
a  member  of  the  various  high  courts  of  the  realm,  and  an  active 
participant  in  their  decisions.  At  the  same  time  he  presides  over 
the  upper  house  of  the  legislature  and  is  a  member  of  a  party 
cabinet.  Yet  when  the  chancellor  acts  as  a  judicial  officer  he 
rids  himself  of  all  partisan  bias ;  he  ceases  to  think  as  an  execu- 
tive or  as  a  lawmaker  and,  with  other  judges,  seeks  simply  to 
discover  and  apply  the  existing  law. 

In  like  manner,  when  the  House  of  Lords  acts  as  the  highest 
court  of  appeal  for  cases  arising  in  the  united  kingdom  of  Great 
Britain  and  Ireland,  it  is  not  really  the  lawmaking  body  which 
constitutes  the  court.  The  judicial  function  of  the  House  of 
Lords  is  discharged  by  the  life  peers  and  other  members  who  hold 


526  COMPARATIVE    FREE   GOVERNINIENT 

or  have  held  high  judicial  office.  A  similar  condition  prevails  in 
the  Privy  Council.  Cases  arising  in  the  Church  courts  and  all 
cases  from  the  Empire  outside  of  Great  Britain  and  Ireland  go 
to  the  Council  as  the  court  of  last  appeal.  But  for  such  a  pur- 
pose the  Council  is  made  up  of  a  judicial  committee  consisting 
of  the  Lord  High  Chancellor  and  other  members  of  high  rank 
in  the  judiciary.  These  are  now,  however,  courts  of  law,  as 
really  independent  as  if  they  had  been  newly  created  and  filled 
by  jurists  who  have  no  connection  with  the  other  departments  of 
government. 

Union  of  Legislature  and  Executive.  —  While  the  judiciary 
has  become  separated  from  the  other  departments  of  govern- 
ment, the  latter  have,  on  the  contrary,  been  more  thoroughly 
fused  together.  The  Cabinet  unites  lawmaking  and  administra- 
tion. Parliament  makes  and  amends  the  laws  and  at  the  same 
time  looks  after  the  details  of  administration.  So  complete  has 
this  union  of  powers  become  in  the  central  government  that  the 
same  policy  is  carried  into  the  local  governments  of  county  and 
city.  The  city  council  passes  ordinances  and,  through  its  com- 
mittees, also  administers  them.  The  English  are  familiar  with 
a  fusion  of  the  two  functions.  In  local  as  in  general  govern- 
ment the  executive  is  incorporated  with  the  legislative  functions. 

Much  light  is  thrown  upon  the  relation  of  the  three  depart- 
ments of  government  to  one  another  by  a  comparison  of  the 
English  and  American  experiences.  The  Colonies  were  founded 
during  the  century  of  conflict  between  the  Crown  and  the 
Parliament  for  the  control  of  the  government,  and  the  current 
debate  gave  marked  emphasis  to  theoretic  distinctions  between 
the  three  departments,  legislative,  executive,  and  judicial. 
.Sir  Edward  Coke,  chief  justice  of  England,  made  an  early  plea 
for  the  inrlependence  of  the  judiciary.  Parliament  at  the 
beginning  of  the  controversy  conceded  to  the  Crown  executive 
responsibility,  l)ut  claimed  for  itself  a  monopoly  of  the  law- 
making power.  The  executive  and  legislative  remained  united 
because  there  was  discoxccd  no  [)ractical  means  of  se])aralion. 

Separation  in  the  United  States.  —  Statesmen  of  the  Common- 
wealth (1649-1660)  formulated  a  definite  theory  of  government 
as  consisting  of  three  distinct  and  independent  fields  of  author- 
ity. Conditions  in  America  ;it  the  lime  favored  the  develoj)- 
meat  of  this  theory.     The  colonists  were  especially  devoted  to 


THE   COURTS   AND  LOCAL   GOVERNMENT  527 

their  own  provincial  legislatures.  These  colonial  assemblies 
were  the  only  institutions  which  were  all  their  own.  In  most 
cases  their  chief  executive  and  the  judiciary  came  from  England. 
When  governors  and  judges  administered  in  good  faith  the  acts 
of  the  colonial  legislatures  there  was  peace  and  harmony ;  when 
they  did  not  there  was  friction  and  warfare.  In  any  event 
the  three  departments  of  government  were  separated  and  con- 
trasted. When  the  Colonies  became  States,  an  elected  governor 
filled  the  office  previously  occupied  by  an  appointee  from  Eng- 
land. Later,  an  elected  President  was  charged  with  duties  cor- 
responding to  the  executive  functions  of  king  and  cabinet  in 
England.  Both  in  the  States  and  in  the  General  go-^ernment 
the  Americans  placed  executive  and  legislative  business  in 
separate  hands,  thus  carrying  into  actual  practice  the  theory  of 
government  which  prevailed  in  England  during  the  century  of 
colonization. 

The  result  has  been  that  in  the  United  States  the  executive 
has  come  to  be  associated  with  a  chief  person,  President,  Gov- 
ernor, or  Mayor,  who  is  individually  responsible  for  administer- 
ing the  laws.  In  England  the  attempt  to  separate  the  powers 
failed ;  a  corporate  body,  the  Cabinet,  became  the  responsible 
executive  and  at  the  same  time  the  controller  of  legislation. 
Likewise  in  the  English  city,  the  council  governs,  —  the  Mayor 
is  a  figurehead. 

Local  Courts  and  Local  Governments.  —  The  lowest  court  in 
the  present  English  system  is  that  of  the  Justice  of  the  Peace 
in  petty  sessions.  This  court  is  held  by  one  or  more  justices ; 
it  initiates  processes  to  be  adjudicated  in  the  higher  courts  and  it 
has  jurisdiction  over  minor  offenses.  The  justices  of  the  peace 
in  quarter  sessions  ^  have  jurisdiction  over  more  serious  offenses 
against  the  law.  Before  the  creation  of  the  county  courts  of 
1846  the  justices  of  the  peace  in  petty  and  in  quarter  sessions  had 
civil  jurisdiction  also. 

The  courts  held  by  these  local  magistrates,  appointed  by  the 
Crown,  have  had  a  continuous  history  for  more  than  five  hundred 
years.     During  the  thirteenth  and  fourteenth  centuries,  while 

*  As  the  name  implies,  this  court  meets  four  times  a  year.  It  is  attended  not  only 

by  justices  of  the  peace,  but  also  by  grand  and  lu-tty  jurors.  It  hears  appeals  from 

the  justices  in  petty  sessions  and  tries  cases  of  serious  crime.  It  may  not  try  a  case 
involving  the  death  penalty. 


528  COMPARATR-E   FREE   GOVERNMENT 

the  common  law  courts  were  being  developed  out  of  the  king's 
smaller  Council,  while  the  Great  Council  was  being  transformed 
into  the  two  houses  of  Parliament,  the  business  of  the  local 
courts  in  the  counties  and  in  the  hundreds  was  passing  into  the 
hands  of  local  peace  officers.  In  petty  and  in  quarter  sessions 
the  justices  of  the  peace  attended  to  local  affairs  of  all  sorts, 
judicial,  administrative,  and  legislative.  They  constituted  the 
local  government  in  matters  financial  and  secular.  Church 
matters  had  been  eliminated  from  the  county  court,  but  in  the 
townships,  or  parishes,  secular  and  church  functions  were  still 
united.  Instead  of  the  old  town  meeting  there  remained  the 
parish  vestry,  participating  in  the  support  of  the  parish  church, 
the  care  of  the  poor,  assessments  and  taxation,  and  many  other 
matters  which  would  now  be  classified  as  secular. 

Local  Government  Reorganized.  —  These  are  the  local  insti- 
tutions that  for  many  years  maintained  law  and  order  among 
the  people  while  kings  and  lords  and  bishops  were  engaged  in 
acts  of  strife  and  threatened  revolution.  The  Squirarchy  con- 
sisted not  alone  of  country  gentlemen  in  the  courts  of  petty  and 
quarter  sessions,  but  it  included  also  the  priests  in  the  parishes.^ 
As  stated  in  the  chapter  on  the  history  of  local  government  the 
court  of  the  magistrates  maintained  possession  of  the  full  round 
of  its  powers  until  the  Act  of  1888  established  a  popularly  elected 
county  council  which  relieved  the  court  of  quarter  sessions  of 
nearly  all  of  its  legislative  and  administrative  powers.  Its 
judicial  functions  still  remain. 

The  parish  experienced  its  first  radical  change  in  the  .\ct  of 
1834  creating  a  new  board  for  the  care  of  the  poor.  Parishes  had 
become  entirely  inadequate  to  this  important  function.  The  act 
created  larger  districts,  called  Unions,  which  have  little  regard 
to  county  lines  or  other  local  areas.  The  administration  of  the 
|)oor  laws  was  placed  in  the  hands  of  a  board  of  nine  members  in 
each  union.  Later  acts  encroached  upon  the  spiritual  functions 
of  the  parish.  Dissenters  were  relieved  from  the  requirement  to 
jjay  taxes  for  the  support  of  the  Church,  liiially,  in  i8()4,  an 
act  was  [)assed  |)r()viding  for  the  election  of  parisii  ct)uncils 
whose  work  is  supph mental  to  that  of  the  county  councils.  The 
counties  are  thus  provided  with  a  complete  democratic  govern 
menl  separated  both  from  tin-  judiciary  and  from  the  Churcli. 

'  (Tlic  I'arsoii  and   the  Squire  toiiiijosud   tlic  .Suuirarthy.) 


THE   COURTS   AND   LOCAL   GOVERNMENT  529 

Popular  government  was  extended  to  towns  and  cities  much 
earlier  than  to  the  counties.  The  first  municipal  councils  act 
was  passed  in  1835.  By  various  amendments  to  this  act  the 
government  of  cities  has  been  kept  in  harmony  with  the  growing 
democracy.  In  some  of  the  towns  and  cities  judicial  service 
is  supplied  by  the  ordinary  county  courts  ;  in  others  by  modifica- 
tions of  quarter  sessions  or  by  a  substitute  recorder's  court. 
The  varieties  are  so  numerous  and  complex  as  not  to  admit  of  a 
general  description.  The  Recorders,  who  in  some  cities  per- 
form the  duties  of  quarter  sessions,  are  salaried  judicial  officers 
chosen  like  other  judges  from  the  profession  of  barristers. 

The  effect  of  these  various  measures  has  been  to  create  a  sep- 
arate and  independent  local  judiciary  and  to  place  other  local, 
secular  business  in  the  hands  of  popularly  elected  boards  or 
councils.  The  local  councils  are  little  parliaments,  or  cabinets ; 
all  are  subject  to  the  great  Parliament  at  London  and  they  are 
all  supervised  in  their  policy  by  the  Cabinet  actijig  through  the 
President  of  the  Local  Government  Board.  Great  cities  have 
already  attained  a  large  measure  of  legislative  and  administrative 
independence.  It  is  to  be  expected  that  with  prolonged  expe- 
rience like  freedom  will  come  to  counties  and  parishes.  But 
legally  all  power  rests  with  the  central  government ;  local  boards 
are  subject  to  its  minute  supervision  and  direction. 

The  development  of  modern  industry  made  it  impossible  for 
local  magistrates  to  attend  adequately  to  both  civil  and  criminal 
litigation.  As  stated  above,  civil  cases  were  assigned  to  a  county 
court  created  by  act  of  Parliament  in  1846.  These  courts  are 
several  hundred  in  number.  They  are  held  by  permanent 
judges  appointed  from  the  barristers.  The  districts  are  formed 
without  reference  to  county  lines.  Their  courts  relieve  the  old 
county  court  of  a  large  share  of  its  business,  but  are  themselves 
county  courts  only  in  name.  They  are  rather  small  debts 
courts,  whose  jurisdiction  in  ordinary  cases  is  limited  to  £100, 
and  in  equity  cases  to  £500. 

There  are  thus  four  sets  of  judicial  officers  derived  from  the 
ancient  county  governments : 

1.  The  Justices  of  the  Peace  in  petty  sessions. 

2.  The  Justices  of  the  Peace  in  quarter  sessions 

3.  The  Recorders  in  towns  and  cities,  and 

4.  The  Count V  Courts  of  18/1.6. 


530  COMPARATRE    FREE   GOVERNMENT 

The  High  Courts.  —  By  various  acts  of  reform,  beginning  in 
1873,  the  courts  intervening  between  the  local  courts  and  the 
two  courts  of  final  appeal  have  been  reorganized  and  the  pro- 
cedure simplified.  The  three  common  law  courts  and  the  court 
of  equity  have  been  merged  into  one  Supreme  Court  of  Judica- 
ture. This  court  may  adopt  rules  of  procedure,  but  for  the  trial 
of  cases  it  is  divided  into  a  Court  of  Appeals  and  a  High  Court  of 
Justice.  The  latter  is  itself  divided  into  a  Court  of  Chancery, 
a  Court  of  the  King's  Bench,  and  a  Court  of  Admiralty,  Probate, 
and  Divorce.  The  High  Court  of  Justice,  acting  through  its 
three  divisions,  is  a  court  of  general  original  jurisdiction,  and  it 
also  hears  appeals  from  the  lower  courts.  Appeals  from  the 
three  divisions  of  the  High  Court  go  to  the  Court  of  Appeals 
and  from  this  Court  the  appeal  is  to  the  House  of  Lords.  The 
House  of  Lords  also  hears  appeals  from  the  courts  of  Scotland 
and  Ireland.  As  stated  above,  the  Privy  Council  hears  appeals 
from  the  Church  courts  in  England  and  from  the  courts  of  the 
Empire  outside  of  Great  Britain  and  Ireland.  London  has  a 
system  of  courts  peculiar  to  itself  and  in  other  cities  the  modifica- 
tions are  numerous. 

All  the  memljcrs  of  the  House  of  Lords  have  a  legal  right  to 
participate  in  the  hearing  of  appeals,  but  by  custom  the  business 
is  confined  to  the  Lord  High  Chancellor,  who  presides,  the  life 
peers  ^  appointed  for  the  purpose,  and  any  other  peers  who  hold 
or  have  held  high  judicial  office.  The  Court,  by  recent  statute, 
is  empowered  to  transact  business  when  the  House  of  Lords  is 
not  in  session.  Since  appeals  come  to  the  House  of  Lords  from 
Ireland  and  Scotland,  care  is  taken  to  secure  representatives  in 
the  Court  from  those  countries.  Procedure  of  the  Court  is 
analogous  to  the  ordinary  procedure  of  the  Mouse  ;  the  issues  are 
debated  and  voted  upon,  and  a  majority  decides. 

The  other  Court  of  final  appeal,  the  Judicial  Committee  of  the 
Privy  Council,  is  composed  for  the  most  part  of  the  Judges  who 
decide  cases  of  a])peal  in  the  House  of  Lords.  Ikit,  since  the 
Privy  Council  hears  cases  aj^pealed  from  Church  courts  in 
England,  and  a  great  variety  of  cases  from  the  colonies  and  from 

•  A  part  of  the  measures  for  reform  consisted  in  addinj.,'  to  the  House  of  Lords  four 
Lords  of  Appeal  in  Ordinary.  These  arc  made  peers  for  life.  The  object  was  to 
strengthen  the  House  as  a  Court  for  final  appeal.  Lowell,  "The  t'lovernment  of 
England,"  Vol.  II,  p.  4O4. 


THE   COURTS   AND   LOCAL   GOVERNMENT  531 

India,  the  Court  is  strengthened  by  representatives  from  the 
Church,  from  India,  and  from  the  colonies.  The  two  supreme 
courts  are  thus  composed  of  a  body  of  English  Jurists  with  a  few 
members  added  to  meet  the  special  needs  of  the  separate  courts. 

The  Act  of  1873  provided  for  a  Supreme  Court  of  Judicature 
to  which  was  to  be  transferred  the  judicial  functions  of  the 
House  of  Lords  and  the  Privy  Council.  It  was  designed  to  be 
the  Court  of  final  appeal  in  place  of  the  House  of  Lords  and  the 
Privy  Council ;  but  before  the  Act  went  into  effect  it  was 
amended  so  as  to  restore  the  judicial  functions  to  the  older 
bodies.  The  Supreme  Court  of  Judicature,  however,  remains 
as  a  body  of  judges  having  some  control  over  matters  of  pro- 
cedure, but  no  duties  as  a  court  for  the  trial  of  cases.  The 
Supreme  Court  is  divided  into  two  branches  —  a  Court  of  Appeal 
and  a  High  Court  of  Justice.  The  High  Court  of  Justice  has 
three  divisions  known  as  the  Chancery,  the  King's  Bench,  and 
the  division  of  Probate,  Divorce,  and  Admiralty. 

The  Court  of  Appeals  is  composed  of  the  Master  of  the  Rolls, 
the  Presidents  of  the  three  divisions  of  the  High  Court,  and  five 
Lord  Justices  appointed  for  the  purpose.  Ex-Chancellors  may 
sit  upon  the  invitation  of  the  Chancellor.  All  sessions  are  held  in 
London,  and  the  court  works  in  sections,  three  Justices  usually 
sitting  together.  The  appeals  are  from  the  three  divisions  of  the 
High  Court  and  in  some  instances  from  the  lower  courts.  Until 
1907  no  appeals  were  allowed  in  criminal  cases,  but  a  statute 
of  that  year  provides  for  a  Court  of  Criminal  Appeal  composed 
of  judges  from  the  Court  of  the  King's  Bench. 

The  Chancery  Division  of  the  High  Court  of  Justice  is  made 
up  of  the  Chancellor  as  President  and  six  other  Judges.  The 
King's  Bench  Division  consists  of  its  President,  the  Chief  Justice 
of  England,  and  fourteen  other  Judges.  The  Probate,  Divorce, 
and  Admiralty  Division  is  made  up  of  a  President  and  one  addi- 
tional judge.  These  arc  all  divisions  of  one  court,  and  the 
Judges  in  the  various  sections  may  be  freely  transferred  from  one 
division  to  another.  The  object  of  the  system  is  to  simplify 
procedure  and  economize  labor.  When  a  single  judge  from  any 
one  of  the  divisions  holds  a  court,  it  is  a  session  of  the  High 
Court.  Judges  from  the  King's  Bench  Division  are  commis- 
sioned to  hold  courts  in  the  various  Counties.  On  circuit  a 
single  judge  acts  for  the  Court.     In  civil  cases  doubtful  questions 


532  COMPARATIVE    FREE   GOVERNMENT 

may  be  referred  to  the  London  Session,  where  two  judges  hold 
the  court.  The  High  Court  of  Justice  is,  therefore,  simply  the 
name  of  a  body  of  Judges  who,  either  singly  or  in  pairs,  exercise 
general  jurisdiction  over  all  matters  of  litigation,  as  indicated 
by  the  three  parts  into  which  the  court  is  divided. 
The  following  is  a  list  of  the  Courts : 

1.  The  House  of  Lords. 

2.  The  Judicial  Committee  of  the  Privy  Council. 

3.  The  Sui)remc  Court  of  Judicature. 

4.  The  Court  of  Appeals. 

5.  The  High  Court  of  Justice,  composed  of 

(a)  The  Chancery  Division. 

(b)  The  King's  Bench  Division. 

(c)  The  Division  of  Probate,  Divorce,  and  Admiralty. 

6.  The  County  Court. 

7.  The  Court  of  Quarter  Sessions. 

8.  The  Justices  of  the  Peace  in  Petty  Sessions. 

REFERENCES 

Anson.     Laiv  and  Custom  of  the  Constilulion,  \'ol.  II,  Chap.  X. 

Carter.     History  of  the  English  Legal  Institutions,  Fourth  Edition,  1910. 

HoLDSWORTH.     History  of  English  Late. 

LowKLL.     Government  of  England,  Vol.  II,  1908,  Chaps.  LIX-LXIII. 

Maitland.     Justice  and  Police,  1885. 

Marriott.     English  Political  Institutions. 

Medley.     English  Constitutional  History,  1894,  Chu^)s.  VIF-VTII. 

Ogg.     The  Governments  of  Europe,  1914,  Chap.  VIII. 

Poole.     The  Exchequer  in  the  Twelfth  Century, 


CHAPTER  XLIV 

Wales,  Scotland,  and  Ireland 

The  government  thus  far  described  is  that  of  England  proper, 
both  in  its  history  and  in  the  forms  of  its  organization ;  yet  in 
a  broader  sense  the  terms  used  apply  to  three  additional  peoples 
in  whom  there  is  a  strong  sense  of  separate  nationality.  The 
four  peoples,  English,  Welsh,  Scotch,  and  Irish,  are  all  of  mixed 
ancestry.  Celtic,  Saxon,  Danish,  Norman,  and  many  other 
racial  strains  mingle  in  these  nations.  Common  to  all  the  four 
races  is  the  fact  that  they  have  grown  out  of  conflicts  between 
natives  of  the  Islands,  usually  classified  as  Celtic,  with  con- 
querors from  the  Continent.  The  Angles,  or  English,  were  one 
of  the  conquering  tribes,  and  the  original  inhabitants  who  re- 
mained under  the  direct  dominion  of  the  early  conquerors  all 
became  English  in  sentiment  as  well  as  in  name. 

Wales  and  Scotland.  —  The  Welsh  are  distinguished  from 
their  brethren  who  became  English,  in  that  they  held  out  longer 
against  their  conquerors.  Having  kings  and  princes  of  their  own, 
they  developed  an  intense  patriotism  which  expressed  itself  in 
music  and  song  and  a  high  order  of  literature.  Yet  they  were 
finally  subdued  or  were  induced  to  submit  to  English  rule. 
They  were  permitted,  however,  to  retain  their  own  language  and 
to  cultivate  their  own  literature  and,  to  a  large  extent,  to  follow 
their  own  local  customs.  Since  1307  the  heir  to  the  English 
throne  has  been  called  the  Prince  of  Wales.  The  loyalty  of  the 
Welsh  was  won  by  fair  and  considerate  treatment.  This  was  so 
thorough  and  came  so  early  in  the  national  history  that  on  the 
political  side  the  fusion  was  complete.  Nearly  all  laws  apply 
indifferently  to  the  two  countries.  Yet  the  fact  remains  that 
in  no  other  part  of  the  United  Kingdom  is  native  race,  language, 
and  literature  so  well  preserved,  and  local  patriotism  so  intense. 

Scotland  has  a  different  history.  The  English  conquerors 
extended  their  dominion  also  to  the  north.     Eor  a  long  time  ihey 

533 


534  COMPARATIVE   FREE   GOVERNMENT 

ruled  the  country  as  far  as  the  Firth  of  Forth.  Strenuous 
efforts  were  made  to  bring  the  whole  of  Scotland  under  English 
rule,  but  lowlands  and  highlands  finally  united  and  established 
and  maintained  an  independent  kingdom.  The  union  with 
England  was  nominally  achieved  in  1603  when  James  VI  of 
Scotland  became  James  I  of  England.  A  hundred  years  later 
the  union  was  perfected,  when  the  Scottish  Parliament  was  dis- 
banded and  the  people  accepted  representation  in  the  English 
Parliament.  The  Scots  retained  their  own  local  governments, 
their  own  laws,  and  system  of  jurisprudence,  which  is  entirely 
different  from  that  of  England.  They  repudiated  the  English 
Church,  and  ihcy  maintained  their  own  system  of  education. 

Representation  in  Parliament.  —  Legally,  when  the  Scottish 
Parliament  became  extinct,  the  people  were  subject  to  a  gov- 
ernment of  whose  membership  their  own  representatives  are  a 
small  minority.  To  serve  in  the  House  of  Lords  the  peerage  of 
Scotland  elects  sixteen  of  their  number  at  each  election  of  the 
House  of  Commons,  —  a  small  fraction  of  the  entire  membership. 
The  Allotments  Act  of  1885  gave  to  Scotland  72  members  in  the 
House  of  Commons,  to  Ireland  103,  and  to  England  and  Wales 
495.  Scotland,  thus,  has  72  out  of  a  total  of  670.  For  a  long 
time  after  the  union  the  administration  of  laws  in  Scotland  was 
carried  on  through  the  office  of  the  English  Home  Secretary, 
but  in  1885  the  office  of  Chief  Secretary  for  Scotland  was  created 
and  Scottish  administration  passerl  into  his  hands.  The  Chief 
Secretary  is  a  member  of  Parliament  and  of  the  ministry,  and 
is  usually  a  member  of  the  Cabinet.  In  judicial  matters  the 
union  of  the  two  countries  carried  with  it  the  right  of  appeal 
from  the  high  court  of  Scotland  to  the  House  of  Lords.  Scottish 
jurists  arc  represented  among  llu'  law  Lords. 

Scottish  Influence  in  the  Government.  In  outward  api)ear- 
ance  a  small  count  ly  thus  became  subject  to  a  great  and  powerful 
state ;  but  the  actual  facts  are  far  otherwise.  It  is  nearer  the 
truth  to  say  that  the  small  country  has  dominated  the  larger 
state.  Scotland  gave  to  England  the  Stuart  monarchs,  and 
from  the  same  source  came  the  determining  ])ower  in  saving 
England  from  their  despotic  rule.  The  Scots  diij  not  consent  to 
abandon  their  own  I'arliament  until  it  l)ecanie  evident  that  the 
Parliament  at  London  was  gaining  the  mastery  over  the  Crown. 
Ill   llie  British  I'arlinnu-nl   the  Scotch  representatives  ha\'e,  to 


WALES,    SCOTLAND,   AND   IRELAND  535 

a  large  extent,  maintained  control  of  legislation  for  Scotland; 
they  have  constituted  a  sort  of  parliament  within  the  larger 
assembly  for  the  government  of  their  own  country.  While 
effectively  resenting  the  interference  of  the  English  in  dictating 
legislation  for  Scotland,  they  have  been  active  and  efficient  in 
making  laws  for  England  and  for  the  Empire.  In  like  manner, 
in  matters  of  administration  they  have  maintained  effective 
control  over  Scotland.  Even  while  they  were  nominally  subject 
to  the  English  Home  Secretary,  Scottish  affairs  were  really 
managed  by  the  Lord  High  Advocate  for  Scotland,  unless,  per- 
chance, the  Home  Secretary  was  himself  a  Scotsman  and  pre- 
ferred to  look  after  the  details  of  the  administration  of  his  own 
country.  The  English  have  been  shut  out  from  local  administra- 
tion in  Scotland  while  the  Scots  have  secured  for  themselves  a 
large  proportion  of  the  offices  for  the  government  of  England. 
Wherever  the  British  flag  goes  Scottish  officers  go.  In  politics 
and  officeholding  the  Scots  are  English  and  lay  claim  to  a  share 
in  all  the  glories  of  the  Empire.  But  in  local  matters  they 
remain  a  distinct  people  and  are  possessed  of  a  large  measure  of 
local  national  patriotism.^ 

The  Conquest  of  Ireland.  —  The  conflicts  which  led  to  the 
subjugation  of  Wales  and  to  the  independence  of  Scotland  were 
already  well  advanced  before  the  English  conquest  of  Ireland 
began.  Henry  II  (11 54-1 189)  inaugurated  the  policy  of  over- 
running parts  of  that  island,  confiscating  the  lands  and  establish- 
ing English  colonies  upon  them.  There  was  then  no  central 
government,  the  country  being  held  by  rival  chiefs  contending 
for  the  supremacy.  The  English  invaders  of  Ireland  either  main- 
tained against  the  natives  a  brutal  and  exterminating  war  or 
they  became  themselves  Irishmen.  It  was  comparatively  easy 
for  English  armies  to  overrun  the  country,  but  for  centuries  it 
was  impossible  to  govern  it.  English  colonists  residing  there 
often  united  with  the  native  chiefs  to  resist  the  later  incursions 
of  the  English.  They  not  infrequently  became  the  most  invet- 
erate enemies  of  England.  Irish  patriotism  and  the  feeling  of 
nationality  was  thus  not  so  much  a  matter  of  race,  language,  or 
religion  as  it  was  a  sense  of  common  danger  inspired  by  a  power- 
ful enemy.  Besides  the  English,  the  Danes,  Normans,  and 
others  from  the  Continent  made  incursions.     These  mingling 

'  Lowell,  "  The  Government  of  England,"  Vol.  I,  pp.  272,  273. 


536  COMPAR.-\TIVE   FREE   GOVERNMENT 

races  were  gradually  amalgamated  by  a  common  resistance 
to  English  rule.  After  numerous  conquests  and  many  attempts 
to  govern  the  country,  P2nglish  authority  had  become  generally 
recognized  at  the  beginning  of  the  reign  of  James  I  in  1603. 
To  assist  in  holding  the  country  Puritan  and  Presbyterian 
colonists  were  settled  upon  confiscated  lands.  The  bitterness 
of  religious  controversy  was  added  to  the  old  conflict  of  opposing 
nationalities.  English  common  law  was  being  gradually  ex- 
tended over  a  people  hostile  in  sentiment  and  whose  local 
customs  were  not  adapted  to  the  system.  In  the  name  of  law 
the  people  were  deprived  of  their  lands.  Irish  estates  passed 
into  the  hands  of  English  landlords,  many  of  whom  remained  in 
England,  and  the  country  was  ruled  by  a  foreign  army.  Nearly 
the  whole  of  Ireland  except  the  newly  imported  Presbyterians, 
who  were  the  direct  beneficiaries  of  the  English  rule,  became 
or  remained  Roman  Catholic.  The  conflicts  between  Puritan 
and  Crown  in  England  extended  to  Ireland.  There  were  brutal 
massacres  by  both  parties.  The  Irish  took  the  side  of  James  II 
in  his  efforts  to  regain  the  throne  of  England.  Ulster  Protes- 
tants fought  on  the  side  of  William  of  Orange  in  the  decisive 
battle  of  the  Boyne,  July  12,  i6go.  Since  that  date  English 
rule  over  Ireland  has  not  been  seriously  threatened. 

The  Character  of  the  English  Rule  in  Ireland.  —  The  Irish 
have  submitted  as  unto  a  foreign  ruler.  The  law,  the  police, 
the  church,  the  schools,  were  all  in  the  hands  of  the  conquerors. 
England  won  the  loyalty  of  Wales  and  Scotland  by  respecting 
the  preferences  of  the  people.  The  enmity  of  Ireland  has  been 
fostered  by  disregarding  the  i)references  of  the  people.  Until  the 
rise  of  democracy  in  England  the  masses  of  the  Irish  people  were 
de[)rive(l  of  all  political  rights.  The  wave  of  democracy  which 
carried  the  extension  of  the  franchise  in  1832  removed  many  of 
the  political  disabilities  of  the  Irish  Catholics.  Thi'  further  ex- 
tension of  the  franchise  in  1S67  was  followed  by  the  (Hscstablish- 
ment  and  disendowment  of  a  church  whicli  for  (xnturies  had 
been  forcefl  upon  the  Irish.  Later,  as  the  democracy  in  I^nghmd 
has  become  more  self-conscious  and  more  securely  dominant, 
many  abuses  of  long  standing  have  been  removed. 

In  the  meantime  the  spirit  of  nationality  in  Ireland  has  not 
one  whil  abated.  The  Irish  have  never  had  a  king  of  their  own 
race.     Their  cxfcutivc  and  judiciary  have  always  been  viewed  as 


WALES,  SCOTLAND,  AND  IRELAND  537 

alien  impositions.  The  one  institution  which  could  be  looked 
upon  as  national  in  its  character  has  been  a  legislative  assembly 
which  has  existed  in  the  island  at  various  times.  Irish  patriot- 
ism has  therefore  expressed  itself  in  a  demand  for  the  restoration 
of  an  Irish  legislature. 

At  the  time  the  last  legislature  was  abolished,  1801,  the  Irish 
peers  were  permitted  to  select  twenty-eight  of  their  own  number 
to  sit  in  the  House  of  Lords.  The  privilege  is  still  continued. 
But  unlike  the  Scottish  members  the  Irish  peers  hold  the  office 
for  life  and  are  not  reelected  for  each  parliament.  To  the  Irish 
was  also  granted  proportionate  representation  in  the  House  of 
Commons.  The  present  number,  103,  gives  to  Ireland  some 
thirty  members  more  than  their  just  proportion.  This  arises 
in  part,  however,  from  a  decrease  in  Irish  population. 

The  Irish  executive  has  been  developed  out  of  an  army  of 
occupation.  The  Lord  Lieutenant  of  Ireland  was  in  the  begin- 
ning the  commander  of  an  alien  military  force.  The  police  are 
only  slightly  modified  English  soldiers.  The  government  is 
thoroughly  military  in  its  form  of  organization.  The  laws 
passed  by  the  British  Parliament  have  made  it  easy  at  any  mo- 
ment to  transform  the  Irish  executive  into  actual  mihtary  rule. 
The  Lord  Lieutenant  is  a  member  of  the  English  Ministry. 
Sometimes  he  is  a  member  of  the  Cabinet.  His  salary  of 
£20,000  he  is  expected  to  expend  in  the  maintenance  of  a  palace 
in  Dublin.  In  recent  years  the  Chief  Secretary  to  the  Lord 
Lieutenant,  who  is  always  a  member  of  the  House  of  Commons, 
has  assumed  the  chief  duties  of  the  office.  This  has  led  to  the 
Chief  Secretary's  taking  the  place  in  the  Cabinet  formerly  held 
by  the  Lord  Lieutenant.  Note  again  the  contrast  with  the 
Scottish  executive,  a  government  from  which  all  English  inter- 
ference is  excluded. 

The  judicial  system  is  simply  the  P^nglish  system  imposed  upon 
the  people  by  the  use  of  the  army.  From  the  highest  court  in 
Ireland  the  appeal  lies  to  the  House  of  Lords. 

During  the  seventeenth  century  by  the  use  of  the  army,  by  the 
use  of  the  courts,  by  the  use  of  Protestant  Irish  legislatures, 
Irish  lands  amounting,  it  is  estimated,  to  one  third  of  the  agri- 
cultural lands  of  the  island  were  transferred,  without  compensa- 
tion, from  Catholic  to  Protestant  owners.^     This  and  other  acts 

•  Gardiner,  "Students'  Histon.-  of  England,"  Vol.  II,  p.  505. 


538  COMPARATIVE   FREE   GOVERNMENT 

of  like  import  have  given  rise  to  a  land  question  of  peculiar 
piquancy. 

The  Governments  of  Ireland  and  India  Compared.  —  For 
many  decades  the  EngHsh  have  maintained  a  government  over 
a  large  proportion  of  the  human  race  in  Asia.  They  are  wont 
to  regard  this  government  as  distinguished  for  its  efficiency  and 
for  its  success  in  winning  the  loyalty  of  its  subjects.  During  a 
like  period  the  government  of  Ireland  has,  from  the  standpoint 
of  the  English  rulers,  been  honest  and  efficient.  To  the  English 
governing  classes  it  has  been  a  matter  of  surprise  that  the  Irish 
do  not,  like  the  people  of  India,  show  fitting  gratitude  for  such  a 
government.  But  there  are  points  in  the  comparison  which 
have  been  entirely  overlooked.  The  English  have  never  tried 
to  force  upon  the  people  of  India  an  ahen  religion,  a  foreign  land 
system  involving  a  transfer  of  title  from  Mohammedans  or 
Buddhists  to  Christians.  Another  point  of  difference  is  that 
the  Irish  are  not  Asiatics.  They  are  in  race  and  lineage  not  far 
removed  from  the  English  themselves.  The  reiterated  assertion 
that  Irish  peculiarities  demand  a  peculiar  treatment  is  not  well 
founded.  On  the  contrary,  the  Irish  are  like  their  neighbors  on 
the  larger  island,  they  have  persistently  refused  to  submit 
peaceably  to  a  government  which  they  did  not  approve.  They 
are,  however,  j)eculiar  in  this,  that  in  the  maintenance  of  a 
resistance  which  has  given  distinction  to  the  Anglo-Saxon  race 
the  Irish  have  fought  a  longer  and  a  harder  battle.  For  thus 
persevering  to  the  end  they  deserve  and  will  receive  the  lasting 
gratitude  of  militant  democracy  in  all  lands.  When  Gladstone 
said  that  Ireland  must  Ijc  governed  in  harmony  with  Irish  oj)inion, 
he  gave  utterance  to  a  ])rimary  a.xiom  in  the  modern  view  of 
government. 

Training  for  Imperial  Rule.  —  The  four  ill-defined  local 
nationalities  which  make  up  the  United  Kingdom  have  been  an 
important  factor  in  the  training  of  British  statesmen  for  imperial 
rule.  They  make  politics  interesting.  How  often  a  (luestion 
arising  in  a  parliamentary  debate  receives  illumination  from 
each  of  the  four  i)arts  of  the  kingflom.  Local  English  politics 
become  varieri,  saved  from  the  dead  level  of  comm()n|)lace 
stupidity.  When  the  I'^nglish  county  council's  bill  of  1888  was 
under  discussion,  the  Irish  mcml)ers  took  an  active  part,  furnish- 
ing enlightening  details  as  to  Irish  local  government  which  pre- 


WALES,   SCOTLAND,   AND   IRELAND  539 

pared  the  way  for  the  later  extension  of  a  similar  measure  to  Ire- 
land. Such  experience  in  comparative  government  growing  out 
of  the  coexistence  of  four  nationalities  has  had  no  small  share 
in  training  the  British  for  successful  imperial  rule. 

The  movement  for  home  rule  in  Ireland  has  become  asso- 
ciated with  a  plan  for  the  federation  of  the  United  Kingdom. 
The  four  nationalities  would  naturally  furnish  the  basis  for  such  a 
federation.  Wales  and  Scotland  might  each  be  granted  a  legis- 
lature, and  England  one  or  more  provincial  assemblies.  The 
government  of  England  would  thus  be  harmonized  with  those 
of  the  largest  of  the  self-governing  dominions,  Canada,  Australia, 
and  South  Africa,  —  all  federated  states.  By  means  of  such  a 
system  the  imperial  Parliament  might  be  relieved  from  the  care 
of  local  legislation,  and  the  central  government  from  the  details 
of  local  administration.  The  democratization  of  local  govern- 
ment tends  to  increase  rather  than  to  diminish  the  demands  upon 
the  central  government  and  such  labors  might  well  be  passed 
over  to  the  governments  in  the  several  provinces. 

REFERENCES 

Brown.     History  of  Scotlatid,  Three  Vols. 

Cambridge  Modern  History,  Vol.  XII,  Chap.  IV. 

MORLEY.     Life  of  Gladstone,  Vol.  II,  Book  IX,   Chap.    V,  and  Book  X, 

Chaps.  I-V. 
Tout.     Political  History  of  England,  Chap.  XXXVI. 
Lowell.     Governtncnl  of  England,  Vol.  I,  pp.  137-144. 


CHAPTER  XLV 

The  Self-governing  Dominions 

England's  contril)ution  to  free  government  does  not  rest 
chiefly  upon  what  has  taken  place  within  the  United  Kingdom  of 
Great  Britain  and  Ireland,  but  rather  upon  the  extension  of 
democracy  through  the  process  of  colonization.  Not  only  have 
the  independent  rej)ublics  of  the  New  World  arisen  from  Pmglish 
colonization  and  influence,  but  there  remain  three  self-govern- 
ing dominions,  each  with  a  territory  almost  equal  to  that  of  the 
United  States,  still  loyal  to  the  British  Crown.  English  colonies 
have  created  the  federated  form  of  government  now  being 
rapidly  extended  upon  all  the  continents. 

The  Dominion  of  Canada.  —  After  the  United  States  had 
become  independent  it  was  only  a  question  of  time  when  Canada 
should  either  become  incorporated  into  that  Republic  or  should 
attain  for  itself  a  free  government.  Civil  war  broke  out  between 
French  Catholics  and  English  Protestants  in  1837.  Some  Eng- 
lish statesmen  then  encouraged  the  policy  of  union  with  the 
United  States;  i)ut  the  Canadians  opposed  it.  The  alternate 
policy  was,  flrst,  federation  between  the  two  disturbed  Provinces 
of  Upper  and  Lower  Canada  in  1841,  followed  in  i<S07  by  a  plan 
of  federation  for  the  whole  of  British  America.  Statesmen  from 
the  four  Provinces  of  New  Brunswick,  Novia  Scotia,  Upper  and 
Lower  Canada,  the  two  latter  under  the  new  names  of  Ontario 
and  Quebec,  first  formulated  the  plan  of  union  and  secured  its 
adoj)tion  by  the  English  Parliament  under  the  name  of  the 
British  Xnrlli  American  A cl.  New  provinces  have  since  joined 
the  Union,  an<l  the  Dominion  govermnent  now  exercises  autlior- 
ity  over  the  entire  country. 

In  framing  their  government  the  Canadians  took  the  United 
States  as  their  model.  They  accepted  the  principle  of  division 
of  powers  between  the  Provinces  and  the  Dominion  government  ; 
but  instead  of  making  tlie  separate  States  the  possessors  of  the 

540 


THE   SELF-GOVERNING   DOMINIONS  54 1 

residuary  powers  they  assigned  them  to  the  general  government. 
The  Constitution  assigns  certain  powers  to  the  Provincial  legis- 
latures, all  others  being  reserved  to  the  government  of  the 
Dominion.  Sixteen  clauses  define  the  powers  of  the  provinces : 
twenty-nine  clauses  describe  those  to  be  exercised  by  the  Parlia- 
ment of  Canada ;  but  the  reservation  is  made  that  this  is  not  to 
be  so  construed  as  to  restrict  the  general  power  "  to  make  laws 
for  the  Peace,  Order,  and  good  Government  of  Canada  in  relation 
to  all  matters  not  assigned  exclusively  to  the  Provinces."  As 
compared  with  the  United  States,  the  general  government  has  a 
much  wider  range  of  powers,  and,  as  just  said,  it  is  assumed  that 
the  Dominion  may  exercise  any  power  which  has  not  been  ex- 
clusively appropriated  to  the  Provinces. 

The  Canadian  Constitution  is,  in  form,  an  Act  of  the  British 
Parliament.  It  is  EngUsh  in  its  phraseology.  All  executive 
power  is  vested  in  the  King,  and  is  exercised  through  a  Governor- 
General  appointed  by  him.  All  official  acts  are  in  the  name  of 
the  King.  The  Governor  rules  with  the  advice  of  a  Privy 
Council  whose  members  he  appoints.  No  mention  is  made  of  a 
Prime  Minister  or  a  Cabinet ;  but  in  Canada  the  Privy  Council 
is  the  Cabinet  and  the  head  of  the  Council  is  the  Prime  Minister. 
The  Privy  Councilors,  being  members  of  a  ruling  Cabinet, 
secure  and  hold  office  as  leaders  of  the  party  having  a  majority 
in  the  Lower  House  of  the  legislature.  Both  in  the  Dominion 
government  and  in  that  of  the  Provinces  the  English  cabinet 
system  prevails.  A  Lieutenant-Governor  for  each  Province, 
appointed  by  the  Governor- General,  is  the  nominal  executive 
head.  With  him  is  associated  a  Council,  which  serves  as  pro- 
vincial Cabinet  and  is  the  efficient  and  responsible  government 
for  the  Province.  Parties  in  Canada  follow  the  English  model, 
using  the  same  names,  Liberal  and  Conservative ;  and,  although 
party  issues  are  different,  there  is  a  natural  sympathy  between 
the  parties  of  the  same  name  in  the  two  countries. 

The  Canadian  Parliament  is  made  up  of  two  houses,  a  Senate 
and  a  House  of  Commons.  The  Senate  is  composed  of  members 
appointed  for  life  by  the  Governor-General  (that  is,  by  the  govern- 
ment of  the  day) ,  and  are  distributed  among  the  Provinces  in  three 
equal  parts,  Quebec  and  Ontario  each  having  the  same  number. 
Qualifications  for  Senators  as  to  age  and  residence  are  the  same 
as  in  the  United  States.     There  is  a  substantial  property  quali- 


542  COMPARATn'E   FREE   GOVERNMENT 

fication.  Though  tenure  is  for  Hfe,  the  office  may  be  vacated 
in  various  ways,  —  by  resignation,  by  failure  to  attend  two 
consecutive  sessions,  by  becoming  bankrupt,  or  faiUng  to  main- 
tain the  required  property  quahfication.  The  number  of 
Senators  is  less  than  a  hundred. 

The  House  of  Commons  is  composed  of  more  than  two  hundred 
members  distributed  among  the  Provinces  according  to  popu- 
lation. They  are  elected  by  ballot  for  a  term  of  five  years. 
The  House  is  subject  to  dissolution  by  the  Governor- General. 

The  Lower  House  is  the  controlling  branch  of  the  legislature. 
Not  only  do  money  bills  originate  there,  but  nearly  all  important 
measures  also.  It  is  the  forum  for  political  controversy.  The 
party  leaders  are  in  control,  as  in  the  English  House  of  Commons. 
The  Leader  of  the  Opposition  receives  several  thousand  dollars 
per  annum  in  addition  to  the  regular  salary  of  twenty-five 
hundred  dollars. 

The  Senate  is  a  mere  revisory  body.  Its  political  affiliation 
changes  as  one  party  or  the  other  controls  the  government  for  a 
term  of  years ;  but  it  has  been  constituted  and  maintained  with 
the  understanding  that  it  should  not  obstruct  the  measures 
agreed  upon  by  the  popular  assembly.  The  Dominion  is  there- 
fore governed  by  a  Cabinet  responsible  to  and  identified  with 
the  House  of  Commons.  Three  of  the  Provinces  have  but  a 
single  chamber  each. 

Canadian  legislatures,  containing  as  they  do  under  the  Cabinet 
system  the  efficient  executive,  hold  a  distinctly  dominant  \)0'=>\- 
tion,  the  judiciary  being  remanded  to  a  distinctly  subordinate 
place.  Yet  the  federal  system  necessitates  the  coexistence  of 
distinct  grades  of  legislative  authority.  The  Constitution,  or 
the  British  North  American  Act,  is  in  the  place  of  supreme 
authority.  Next  in  order  stands  the  Dominion  Parliament, 
and  then  the  Provincial  legislatures.  What  is  done  in  case 
legislatures  in  Canada  enact  laws  in  violation  of  the  Constitu- 
tion? To  meet  such  a  contingency  the  Governor-General;  or 
the  Dominion  Government,  is  given  veto  power  over  Provincial 
legislatures,  and  thus  unlawful  acts  are  forestalled.  The  Gov- 
ernor may  also  veto  or  reserve  for  the  consideration  of  tlu'  Crown 
acts  of  tlie  Dominion  I'arHamcnl,  if  he  deems  iheni  to  encroach 
\x\)o\\  the  rights  of  the  IJritish  government.  But  witli  two 
autliorilies  as  closely  interrelated  as  are  the  Provincial  and  the 


THE  SELF-GOVERNING  DOMINIONS  543 

Dominion  legislatures,  numerous  statutes  are  enacted  whose 
administration  raises  the  question  of  infringement  upon  or  over- 
lapping of  authorities.  Such  matters  come  into  the  courts  in 
process  of  litigation,  and  the  Judges  may  be  of  the  opinion  that 
an  act  of  a  legislature  is  ultra  vires,  or  not  warranted  by  the  Con- 
stitution. The  Court  having  final  authority  to  nullify  a  legis- 
lative act  is  the  English  Privy  Council.  Here  is  seen  a  resem- 
blance to  the  powers  exercised  by  American  Courts  in  nullifying 
acts  of  the  legislature  on  grounds  of  unconstitutionality ;  but 
the  similarity  is  apparent  rather'  than  real.  In  the  American 
governments  the  Courts  are  given  equal  authority  with  the 
legislature.  That  is,  a  court,  as  an  equal  and  coordinate  branch 
of  the  same  government,  may  nullify  an  act  of  the  legislature. 
This  in  effect  places  the  court  above  the  legislature.  But  in 
Canada  the  court  of  a  superior  and  more  comprehensive  govern- 
ment sets  aside  an  act  of  an  acknowledged  inferior  government. 
It  is  as  if  a  State  court  should  rule  that  an  ordinance  of  a  sub- 
ordinate municipality  was  ultra  vires  and  void. 

At  one  time  the  Supreme  Court  of  Canada  became  affected 
with  the  idea  of  equality  as  a  coordinate  branch  of  the  govern- 
ment. The  Dominion  Parliament  passed  an  act  compeUing  the 
Justices  of  the  Supreme  Court  to  answer  questions  put  to  them 
by  the  Governor-General  in  respect  to  the  constitutionality  of  a 
proposed  measure  of  legislation.  The  Court  held  that  this  law 
was  an  interference  with  their  independence  and  was,  hence, 
unconstitutional.  The  Privy  Council  sustained  the  act  and 
made  it  very  clear  that  the  court  was  a  creature  of  the  legislature 
and  subject  to  its  laws.  The  Privy  Council  has  uniformly 
maintained  the  English  position  of  the  supremacy  of  the  legis- 
lature. Statutes  are  nuUified  only  when  they  create  confusion 
between  interrelated  authorities  or  arc  clearly  forbidden  by  the 
Constitution.  Laws  are  not  declared  void  because  in  the  opinion 
of  the  Judges  they  are  unjust  or  confiscatory.  The  responsibility 
for  bad  laws  rests  with  the  legislatures,  not  with  the  courts. 
It  is  the  duty  of  the  Judges  to  administer  statutes  as  they  find 
them,  asking  no  questions  as  to  their  wisdom.  Judges  are  not 
permitted  to  enter  the  field  of  lawmaking  under  the  guise  of 
protecting  the  rights  of  citizens.  Constitutional  law  in  Canada 
is  public  law.  Its  field  is  the  harmonizing  of  authorities,  leaving 
to  the  legislature  the  disposal  of  private  rights. 


544  COMPAR.\TIVE   FREE   GOVERNMENT 

Canada's  judicial  system  is  highly  centralized.  With  the 
exception  of  local  magistrates  all  Judges  are  appointed  for  life 
by  the  Governor-General  and  are  subject  to  removal  by  petition 
from  the  Dominion  Parliament.  A  uniform  system  is  established 
for  all  the  States.  Criminal  law  and  procedure  are  controlled 
by  the  Dominion  government.  The  separate  Provinces  legislate 
upon  civil  matters,  and  incidentally  penal  provisions  are  attached 
to  aid  in  enforcement.  Hence  a  distinction  arises  between 
criminal  law  and  penal  law.  The  same  courts  administer  both 
Dominion  and  Provincial  statutes.  The  Dominion  government 
may  command  the  services  of  Provincial  officers ;  and  in  some 
cases  Provincial  legislatures  rely  upon  Dominion  officers  for  the 
enforcement  of  their  laws.  Notwithstanding  the  close  relation 
of  the  two  governments,  a  vigorous  and  active  local  and  Provin- 
cial life  is  maintained. 

With  the  government  thus  constituted  British  America  be- 
comes in  all  matters  of  local  concern  a  great  free  and  self-gov- 
erning republic  ;  only  in  matters  of  diplomacy  and  in  foreign 
relations  are  Canadians  subject  to  British  authority.  Even  in 
the  making  of  treaties  and  the  adoption  of  foreign  policies,  when 
Canadian  interests  are  involved  Canadian  opinion  is  consulted. 
There  is  intense  loyalty  to  the  British  Crown  because  of  the 
freedom  and  independence  which  are  secured  to  the  people. 
Canadians  know  that  if  they  should  wish  to  join  the  United 
States  or  to  set  up  a  completely  independent  repubUc,  the  British 
government  would  offer  no  forcible  resistance.  The  relation 
between  them  is  entirely  voluntary. 

New  Zealand  and  Australia.  -  Before  the  Canadian  Constitu- 
tion had  been  adopted  English  colonies  had  been  planted  in 
Australasia  and  South  Africa,  and  the  policy  of  encouraging 
local  self-government  was  everywhere  adopted.  New  Zealand 
gaincfl  legal  recognilion  as  a  colony  as  early  as  1840.  In  1907 
the  term  Dominion  was  substituted  for  Colony,  the  change  of 
name  being  intended  to  denote  more  clearly  the  independent 
position  of  the  stale  in  its  relation  to  the  home  government. 
For  several  decades  New  Zealand  has  been  conducting  experi- 
ments in  government  which  are  of  great  interest  to  all  free  states. 
Its  present  form  of  government  is  of  the  English  Cabinet  type, 
with  a  legislature  of  two  Chambers,  one  appointive  and  the  other 
chosen  by  universal  suffrage.     The  people  early  grappled  with 


THE   SELF-GOVERNING   DOMINIONS  545 

the  problem  of  the  use  and  disposal  of  the  public  domain  and 
have  adopted  a  policy  which  aims  to  forestall  monopoly 
and  secure  to  large  masses  of  the  people  the  use  of  land.  A 
system  of  taxation  was  adopted  which  gave  to  the  public  a  con- 
siderable part  of  the  unearned  increment  of  land  values.  Sig- 
nificant has  been  the  policy  of  arbitration  and  conciliation  in 
disputes  between  wage-earners  and  employers.  Government 
officers  interfere  by  legal  right  to  prevent  strikes  and  other  forms 
of  industrial  warfare.  New  Zealand  also  introduced  the  exten- 
sion to  women  of  the  elective  franchise  on  equal  terms  with  men, 
a  plan  finally  adopted  in  all  the  Australian  States.  It  is  an  excel- 
lent example  of  the  small  state,  favorably  located,  working  out 
experiments  in  democracy  which  are  of  universal  interest. 
Australian  States  have  been  especially  influenced  and  benefited 
by  the  study  of  New  Zealand's  progressive  experimentation. 

On  the  first  day  of  the  twentieth  century  the  Commonwealth 
of  Australia  was  proclaimed.  Six  States  formed  the  Union  and 
a  seventh  was  added  the  following  year.  Some  of  these  com- 
munities had  already  a  history  of  more  than  a  hundred  years. 
All  were  democracies  of  the  New  Zealand  type.  More  than  a 
decade  had  been  consumed  in  efforts  to  form  a  constitution 
acceptable  to  all  the  States.  Not  only  had  the  Australians  the 
guidance  of  American  and  Canadian  experience,  but  in  the  mean- 
time Switzerland  had  become  a  conspicuous  teacher  of  federated 
democracy.  The  Canadian  Constitution  of  1867  was  drawn 
up  by  statesmen  from  four  Provinces  and  presented  to  the 
British  Parliament  without  popular  sanction.  The  Australian 
Constitution  came  direct  from  the  hands  of  the  people.  All 
its  provisions  had  been  carefully  discussed.  Various  tentative 
forms  of  union  had  been  abandoned  on  account  of  popular  dis- 
approval. As  finally  adopted  the  formal,  popular  approval 
preceded  enactment  by  the  British  Parliament.  Unlike  the 
British  North  American  Act  the  Australian  Constitution  pre- 
scribes a  method  for  its  own  amendment.  A  majority  of  the 
two  Houses  of  the  Legislature  may  propose  an  amendment  which 
becomes  valid  when  approved  by  a  majority  of  the  voters  so 
distributed  as  to  include  a  majority  of  the  States.  This  is  an 
exact  copy  of  one  of  the  formulas  for  amending  the  Swiss  Con- 
stitution. The  people  make  and  amend  their  own  constitution. 
The  formal  enactment  by  Parliament  gives  final  legal  sanction. 


546  COMPARATIVE   FREE   GOVERNMENT 

The  Constitution  of  Australia  confers  certain  specified  powers 
upon  the  legislature  of  the  Commonwealth  and  reserves  all  other 
powers  to  the  separate  States.  This  is  a  reversion  to  the  plan 
prescribed  in  the  United  States  Constitution.  The  government 
is  less  centralized  than  is  that  of  Canada,  though  the  list  of  con- 
ferred powers  is  more  ample  than  that  found  in  the  American 
Constitution. 

The  method  adopted  for  maintaining  the  Cabinet  system  in 
the  Commonwealth  and  in  the  States  through  the  offices  of  a 
Governor-General,  and  Lieutenant-Governors  for  the  States,  is 
practically  identical  with  that  of  the  Canadian  Constitution. 
The  Australians  adopted  the  American  names  for  the  separate 
Chambers  of  their  legislature,  Senate  and  House  of  Represent- 
atives, and  for  the  two  Houses  the  British  name,  Parliament. 
Both  Senators  and  Representatives  are  elected  by  universal 
suffrage.  Senators  are  chosen  for  terms  of  six  years,  six  from 
each  State,  and  the  terms  are  so  arranged  that  half  of  them  are 
elected  every  three  years.  The  term  of  office  for  Representatives 
is  three  years  and  they  are  distributed  to  the  States  according 
to  population,  the  whole  number  to  be  as  nearly  as  practicable 
twice  that  of  the  Senate.  Control  of  financial  legislation  is 
vested  in  the  House  of  Representatives ;  but  to  the  Senate  is 
given  coordinate  power  over  all  other  matters.  How  can  the 
caljinet  system  be  made  effective  with  a  legislature  having  two 
chambers  of  equal  power  ?  In  the  case  of  Australia  it  was  evi- 
dently intended  that  the  life  of  the  Cabinet  should  depend 
chiefly  upon  the  lower  House ;  but  it  was  conceded  that  a  popu- 
larly elected  Senate  would  have  unusual  power  of  obstruction. 
To  overcome  a  deadlock  the  Constitution  provides  that  in  case 
the  Senate  twice  refuses  to  give  assent  to  a  measure  passed  by 
the  Representatives,  with  three  months  intervening  between  the 
times  of  refusal,  then  both  Houses  may  be  dissolved  and  all  the 
members  newly  elected.  If  the  newly  elected  House  of  Repre- 
sentatives still  persists  in  the  passage  of  the  bill  under  dispute, 
and  if  the  Senate  still  refuses  assent,  then  the  bill  may  come 
before  a  joint  session  of  the  two  Houses.  This  is  a  new  device 
for  securing  harmony  between  a  Cabinet  and  a  bicameral  legis- 
lature. 

The  Constitution  as  originally  framecl  ])rovi(le(l  for  a  complete 
and   independent  judicial  system,   the  Supreme  Court  of  the 


THE   SELF-GOVERNING   DOMINIONS  547 

Commonwealth  being  the  fmal  Court  of  appeal  instead  of  the 
English  Privy  Council.  This  feature  was  modified,  however, 
so  as  to  permit  in  exceptional  cases  an  appeal  to  the  Privy 
Council.  The  Australian  judiciary  remains  substantially  inde- 
pendent of  the  English  judiciary,  with  some  new  and  interesting 
developments  resulting  in  the  relation  of  the  judiciary  to  the 
legislature.  The  Supreme  Court  of  AustraUa  is  of  the  same 
grade  of  authority  as  the  Parliament  of  Australia.  It  becomes 
the  duty  of  the  court  to  rule  on  questions  of  the  constitutionality 
of  acts  of  the  Commonwealth  Legislature.  Acts  of  the  legisla- 
ture have  been  held  void  as  ultra  vires.  For  rendering  such  deci- 
sions the  court  has  been  attacked,  as  being  partial  or  prejudiced. 
The  mere  fact  of  a  transfer  of  power  from  the  Privy  Council  to 
a  local  court  is  having  unforeseen  effects.  The  Judiciary  is 
becoming  involved  in  local  partisan  politics  in  a  way  which 
would  be  impossible  had  the  final  interpretation  of  the  Consti- 
tution remained  with  English  jurists  who  were  accustomed  to 
look  to  legislatures  rather  than  to  courts  for  the  righting  of 
political  wrongs.  If  present  tendencies  continue  in  Australia, 
it  will  no  longer  be  in  order  for  publicists  to  say  that  the  United 
States  is  the  only  country  in  the  world  in  which  a  court  of  the 
same  grade  of  authority  with  the  legislature  has  the  power  to 
nuUify  its  acts.  It  mil  be  impossible,  however,  for  this  policy 
to  be  developed  in  Australia  as  it  has  been  in  America,  because 
of  the  facility  for  amending  the  Constitution.  As  soon  as  a 
serious  issue  arises  between  legislature  and  judiciary  there  at 
once  follows  a  movement  for  amending  the  Constitution,  and  the 
court  is  thus  shielded  from  prolonged  and  bitter  attack.^ 

Union  of  South  Africa.  —  The  Constitution  for  the  Union  of 
South  Africa  was  framed  in  igo8  by  a  delegate  Convention 
from  the  four  colonies  of  Cape  Colony,  Natal,  Transvaal,  and 
Orange  River  Colony.  In  1909  it  was  adopted  by  popular  vote 
in  each  colony  and  was  enacted  by  the  British  Parliament  Sep- 
tember 20,  1909.  During  the  following  year  the  Constitution 
was  carried  into  effect.  Before  the  Union  there  had  been  a 
century  of  rival  colonization  by  Dutch  and  English,  and  a  war 
had  occurred,  resulting  in  the  Conquest  of  two  Dutch  colonies, 
1899  to  1902. 

'See  "The  First  Decade  of  the  Australian  Commonwealth,"  H.  G.  Turner, 
^lelboume,  1911,  p.  188. 


548  COMPARATIVE   FREE   G0VERX:MEXT 

The  South  African  Union  marks  the  last  and  in  many  respects 
the  greatest  of  the  triumphs  of  the  British  policy  of  federa- 
tion. The  submission  of  the  Dutch  colonies  was  immediately 
followed  by  the  cooperation  of  the  English  authorities  in  secur- 
ing to  the  Boers  complete  self-government  in  their  separate 
colonies.  Hostility  disappeared  as  by  magic.  The  Dutch  took 
a  leading  part  in  the  agitation  for  a  more  perfect  union  between 
English  and  Dutch  colonies,  and  General  Botha,  the  Dutch  hero 
of  the  Boer  War,  became  the  first  Prime  Minister  of  the  United 
state. 

Conditions  in  South  Africa  call  for  a  strong  central  govern- 
ment. There  is  a  large  native  population,  a  shifting  body  of 
miners,  and  members  of  various  races  are  found  in  all  the 
Colonies.  To  secure  a  government  capable  of  dealing  with  the 
numerous  perplexing  questions  arising,  the  four  Colonies  were  led 
to  surrender  their  independent  powers  and  become  local  prov- 
inces in  a  unified  state.  Instead  of  a  Lieutenant-Governor  and 
a  Legislature  under  the  cabinet  form  of  government,  as  in  the 
case  of  the  Canadian  Provinces,  there  is  an  Administrator  in  each 
province  appointed  by  the  Governor-General  of  the  Union,  who 
governs  with  the  assistance  of  an  Executive  Council  and  an 
elected  Legislative  Council  of  not  less  than  twenty-five  members. 
A  number  of  powers  and  duties  are  assigned  by  the  Constitution 
to  the  Provinces,  and  these  may  be  indefinitely  extended  at  the 
discretion  of  the  Central  Government.  The  government  is, 
therefore,  on  the  borderland  between  a  federated  union  and  a 
state  divided  into  provinces  wilh  a  large  measure  of  local 
autonomy. 

The  Union  government  is  of  the  thorough  English  cabinet 
type.  There  is  a  Senate  partly  elective  and  partly  appointi\e, 
with  a  j)rovision  that  it  may  be  entirely  elective  after  ten  years. 
Members  of  the  Lower  House,  called  the  House  of  Assembly, 
are  elected  for  a  term  of  five  years.  To  secure  unity  of  action 
between  Cabinet  and  legislature  the  two  Houses  of  Parliament 
may  be  called  into  joint  session,  or  they  may  be  both  dissolved 
at  the  same  time,  or  either  House  may  be  dissolved  sei)arately. 

'I'he  |)rovisions  for  :i  judiciary  resemble  those  in  Australia, 
cxce[)t  that  in  the  case  of  the  South  African  Union  the  Privy 
Council  in  Ivngland,  instead  of  the  local  Su[)reme  Court,  decides 
whether  a  case  may  be  ajjpealcd  lo  the  Privy  Council. 


THE  SELF-GOVERNING   DOMINIONS  549 

The  four  Dominions  thus  described,  together  with  the  United 
Kingdom  of  Great  Britain  and  Ireland,  constitute  a  state  with  a 
peculiar  type  of  government  possessing  federal  qualities.  In 
their  relations  to  the  outside  world  all  are  united  as  one  state ; 
all  are  subject  to  the  British  Government.  In  respect  to  matters 
local  and  domestic,  the  four  Dominions  are  practically  independ- 
ent. England  does  not  tax  them,  she  does  not  command  their 
services  in  case  of  war.  Whatever  aid  the  Dominions  furnish  for 
the  common  defense  of  the  Empire  is  voluntary.  The  union  is 
one  of  good  will  and  mutual  loyalty  to  common  interests.  The 
Governor-General  is  not  sent  to  the  Dominions  to  govern,  he  is 
sent  to  enable  the  Dominions  to  govern  themselves  by  means  of 
the  English  cabinet  system. 

The  spirit  which  finds  expression  in  the  self-governing  Do- 
minions is  being  diffused  throughout  the  government  of  the 
British  possessions  in  general.  Democracy  in  England  inevi- 
tably seeks  to  provide  for  the  training  of  the  people  of  India  and 
the  Crown  colonies  for  local  autonomy  and  for  ultimate  self- 
government. 

REFERENCES 

An  Analysis  of  I  lie  System  of  Government  Throughout  the  British  Empire, 

Macmillan  &  Co.,  191 2,  Part  II. 
Egerton  and  Grant.     Canadian  Constitutional  Development. 
Egerton  and  Grant.     Federation  and  Unions  zi.nl/iin  the  British  Empire. 
Keith.     Responsible  Government  in  the  Dominions,  Three  Vols.,  1912. 
Moore.     The  New  Australian  Commonwealth. 
Todd.     Parliamentary  Government  in  the  British  Colonies. 
Tlt^ner,  H.  G.     The  First  Decade  of  the  Australian  Commonwealth. 


FRANCE 

CHAPTER  XLVI 
Origin  and  Nature  of  the  French  Constitution 

The  study  of  comparative  free  government  begins  naturally 
with  England  and  the  United  States,  since,  historically  con- 
sidered, they  have  led  the  world  in  the  development  of  democ- 
racy and  from  them  have  come  the  two  types  of  organization 
most  widely  adopted.  Above  all  other  states  they  possess  the 
literature  of  democracy,  and  their  reaction  upon  other  states 
is  most  significant  and  most  easily  observed.  These  two 
governments  have,  therefore,  been  described  in  considerable 
detail. 

The  state  next  to  be  examined  in  the  enlargement  of  the  field 
of  comparison  is  indicated  with  equal  certainty  by  the  facts  of 
historx'.  It  is  France  that  has  been  from  very  early  times  most 
intimately  associated  with  the  development  of  the  English  state 
and,  later,  with  that  of  the  United  States,  and  it  is  not  improb- 
able that,  in  the  distant  future,  France  may  be  seen  to  have 
played  an  equally  influential  part  in  determining  the  ultimate 
forms  of  the  free  governments  of  the  world.' 

The  Anglo-Saxons  have  wrought  out  their  political  destiny 
under  exceptional  conditions,  and  it  was  to  be  expected  that  the 
result  would  be  the  evolution  of  qualities  not  adapted  to  incor- 
|)oration  into  the  governmental  forms  of  states  developed  under 
the  quite  diverse  conditions  prevailing  upon  the  European  Con- 
tinent. Especially  is  this  true  of  the  experience  of  the  United 
States  with  its  three  hundred  years  of  j)ractically  unhindered 
and  indei)enflent  growth  upon  a  virgin  continent,  exempt  from 
the  perj^lexing  [jroblems  afllicting  the  peoples  of  the  Old  World. 
England's  insular  position,  though  furnishing  an  isolation  less 

'  Munro,  "  {lovcrnment  of  European  Cities,"  p.  7. 
SSO 


THE   FRENCH   CONSTITUTION  — ORIGIN  AND   NATURE      551 

complete,  has  also  proved  favorable  to  the  fostering  of  an  inde- 
pendent development  in  consonance  with  the  inborn  temper 
and  instincts  of  her  people,  while  her  nearness  to  the  European 
Continent  has  also  proved  advantageous  in  that  the  enforced 
association  with  other  and  diflferent  peoples  has  contributed  to 
the  quickening  of  ideas  and  the  enrichment  of  thought.  France 
has  worked  out  her  history,  her  race  development,  her  political 
ideas,  her  power  of  keen  and  logical  thought,  through  close  con- 
nection with  the  turbulent,  ever  changing  life  of  the  great  con- 
tinental states  about  her,  and  she  is  uniquely  fitted  to  make 
most  important  contributions  to  the  final  forms  of  world  de- 
mocracy. 

Comparison  of  France  and  England.  —  A  superficial  view 
reveals  marked  similarity  in  the  histories  of  France  and  England. 
Both  were  originally  occupied  by  Celtic  peoples;  both  were 
subject  for  centuries  to  Roman  rule ;  both  were  later  conquered 
by  German  tribes  and  were  exposed  to  incursions  and  occupation 
by  the  Danes ;  and  to  each  the  name  of  a  German  tribe  became 
afl&xed.  But  Britain  adopted  the  language  of  the  invading 
Teutonic  tribes,  while  the  people  of  Gaul  first  accepted  that  of 
their  Roman  rulers  and  then  taught  it  to  the  conquering  German 
Franks.  French  is  therefore  a  modified  Latin  tongue,  and 
French  civilization  has  been  profoundly  affected  by  its  intimate 
relation  to  an  earlier  and  powerful  political  development.  It 
has  most  perfectly  embodied  the  dominant  tendencies  of  Western 
Europe.  Under  the  Caesars  Gallia  had  become  as  Roman  as 
Italy  itself  and  Roman  law  became  and  remains  the  basis  of  the 
French  legal  system.  In  France  the  conquering  Teutons 
attained  their  most  brilliant  successes.  There  only  did  the 
feudal  system  reach  perfection,  and  when  the  time  came  for 
monarchy  to  triumph  over  feudalism,  its  most  perfect  work  was 
displayed  in  France.  When,  finally,  the  day  of  democratic 
revolution  dawned,  in  France  alone  did  its  unbridled  spirit  fully 
work  its  will. 

Contrast  all  this  with  corresponding  movements  in  England. 
There  conquest  by  the  Roman  was  only  partial,  as  was  that  of  the 
Angles  and  Saxons  who  followed.  The  Norman  triumph  did 
not  destroy  the  earlier  institutions,  which  the  new  rulers  were, 
indeed,  careful  to  preserve.  The  feudal  system  never  entirely 
prevailed  in  the  Islands,  for  neither  feudal  lords  nor  kings  ever 


552  COMPARATIVE   FREE   GOVERNMENT 

completely  gained  dominion  over  the  people  and  the  ancient 
institutions  to  which  they  clung.  Different  ideals  in  government 
and  society  lived  on  side  by  side,  each  modifying  the  others  and 
no  one  becoming  permanently  dominant.  Democracy  came 
through  a  long  series  of  slight  adjustments  and  adaptations,  all 
in  harmony  with  the  steadfast,  determined,  cautious  English 
character. 

Reciprocal  Influence  of  France,  England,  and  the  United  States 
upon  One  Another.  —  The  constant  influence  of  France  upon 
England  has  been  a  potent  factor  in  the  development  of  democ- 
racy. Norman  and  Plantagenet  kings  had  large  possessions 
in  France.  By  defending  English  local  liberties  they  avoided 
in  their  island  kingdom  the  weakness  of  the  early  feudal  mon- 
archs  of  France.  Factions  in  England  arose  through  conflict 
between  French  foreigners  and  native  English.  It  was  Philip 
Augustus  of  France  as  well  as  the  English  barons  whose  pressure 
obliged  King  John  to  sign  Magna  Charta.  The  liberated 
peasants  of  England  gained  a  new  sense  of  importance  from 
their  triumphs  over  the  feudal  armies  of  France,  and  their  per- 
sistence hastened  the  downfall  of  feudalism  in  both  countries. 
French  monarchs  encouraged  and  assisted  Stuart  Kings  in  their 
warfare  against  Parliament.  Fear  and  distrust  of  France  was 
one  of  the  causes  leading  to  the  triumph  of  the  Whig  party 
in  the  Revolution  of  1688,  and  for  two  generations  British 
Toryism  was  discredited  on  account  of  suspicions  of  French 
influence.  English  religious  history  was  also  often  modiflcd 
by  the  experiences  of  her  neighbor  across  the  Channel.  The 
Massacre  of  St.  Bartholomew  in  1572  helped  to  make  England 
Protestant. 

No  less  significant  has  been  the  relation  of  France  to  America. 
Rival  settlements,  begun  at  the  same  time  in  North  America 
by  both  France  and  England,  led  to  prolonged  ttrrilorial  con- 
flicts. Fear  of  France  caused  England  to  adopt  a  liberal  policy 
toward  her  American  colonies.  Wars  between  France  and 
England  involving  intercolonial  contests  gaxc  I  he  settlers  a 
trained  soldiery.  When  French  authority  had  been  finally 
excluded  from  North  America,  France  aided  the  English  Colonies 
in  a  war  for  infleiiendence. 

Englanfl  and  America  hdvv  in  I  urn  exerted  ;in  inllucnce  u|)()ii 
France.     The  victims  of  liourbon  tyranny  were  encouraged  to 


THE   FRENCH   CONSTITUTION  — ORIGIN   AND   NATURE      553 

thoughts  of  resistance  by  the  example  of  the  freer  peoples. 
Montesquieu,  Rousseau,  Voltaire,  and  other  French  writers  gave 
precise  and  logical  expression  to  the  theories  of  freedom  en- 
gendered by  the  conflicts  between  England  and  her  Colonies. 
The  thoroughness  of  the  autocratic  rule  under  which  the  French 
lived  tended  to  promote  thoroughness  in  their  theory  of  democ- 
racy. The  time  and.  effort  required  to  indoctrinate  a  great 
nation  with  the  new  teaching  gave  rise  to  a  profound  conviction 
of  its  truthfulness  and  importance.  When  the  doctrines  of  the 
French  philosophers  at  last  found  expression  in  a  Declaration 
of  Independence  and  in  the  ibirth  of  a  free  nation  in  America, 
the  reaction  upon  France  was  tremendous.  The  Revolution 
came  like  a  deluge.  Its  excesses  caused  a  conservative  reac- 
tion in  England :  in  France  it  produced  Napoleon.  As  France 
helped  America  to  get  rid  of  George  III,  so  England  helped 
France  to  get  rid  of  the  first  Napoleon.  Both  England  and 
the  United  States  were  active  in  moderating  the  pretensions 
of  the  restored  Bourbons  after  1815.  The  House  of  Orleans,  in 
1830,  distinctly  recognized  the  English  parliamentary  system. 
After  a  succession  of  revolutions  France,  having  been  overrun 
by  German  armies,  was  left  without  a  government.  The  Third 
Republic  was  extemporized  to  meet  the  emergency.  While 
some  of  its  features  were  borrowed  from  the  American  Republic, 
it  is  English  in  its  characteristic  method  of  harmonizing  the 
Executive  and  the  Legislature.  England  and  America  are  thus 
contributors  to  the  shaping  of  the  present  French  government. 
Successive  French  Constitutions.  —  The  present  French 
Constitution  is  the  eleventh  which  has  been  enacted  since  the 
beginning  of  the  Revolution  of  1789.^  The  state  has  more  than 
fulfilled  Thomas  Jefferson's  ideal  of  a  new  constitution  every 
twenty  years.  Some  of  these  documents  have  been  reactionary 
in  certain  of  their  provisions,  but  all  are  based  upon  the  consti- 
tution and  government  of  the  great  Revolution.  Before  that 
event,  the  masses  of  the  people  were  subject  to  the  arbitrary 
personal  rule  of  kings,  nobility,  and  clergy.  After  that,  and 
especially  after  the  completion  of  the  civil  code  of  1804,  the 
people  were  protected  by  laws  administered  by  a  fairly  just  and 
independent  judiciary.  Subsequent  constitutions  specifically 
guaranteed  to  the  people  the  continued  enjoyment  of  their  own 

'  OgSi  "  Governments  of  Europe,"  Chap.  XV,  p.  289. 


554  COMPARATI\'E   FREE   GOVERNMENT 

local  courts  of  arbitration.'  No  reactionary  government  has 
presumed  to  return  to  the  brutalities  of  personal  rule.  Another 
change,  equally  significant  and  permanent,  appeared.  Before 
the  Revolution  the  land,  which  was  in  the  hands  of  nobility  and 
clergy,  had  become  an  agency  of  tyranny  and  oppression.  The 
Revolution  transferred  the  land  to  the  proprietorship  of  the 
peasant  occupants  and  no  later  government  has  called  in  ques- 
tion the  validity  of  the  title. 

Other  provisions  of  the  original  constitution  could  not  be 
rendered  effective  in  so  short  a  time.  A  trained  voting  constit- 
uency cannot  be  extemporized.  Provisions  for  the  exercise  of 
the  right  of  suffrage  were  much  more  liberal  than  those  which 
prevailed  at  the  time  in  England  and  in  the  United  States ;  but 
experience  was  lacking.  No  one  who  understands  the  difficulties 
involved  will  deny  that  during  the  past  century  France  has  made 
phenomenal  progress  in  the  development  of  an  intelligent  popular 
use  of  the  franchise.  The  statesmen  of  the  Revolution  believed 
that  a  state  founded  upon  universal  suffrage  required  universal 
free  education,  but  the  realization  of  this  ideal  in  France  has 
involved  a  conflict  with  the  established  church.  Although 
delays  have  been  numerous  the  third  Republic  is  now  in  process 
of  realizing  universal  education  and  the  separation  of  church 
and  state. 

Centuries  of  tyranny  had  effaced  from  the  minds  of  the  people 
nearly  all  memory  of  local  government.  To  meet  the  popular 
needs  for  local  administration  and  legislation  an  elaborate 
system  of  local  geographical  areas  was  created.  Napoleon 
utilized  these  local  areas  as  administrative  districts  for  the  central 
government  and  the  Napoleonic  system  of  local  government 
still  survives.  France  is  now  apparently  engaged  in  the  more 
important  task  of  proving  that  a  great  state  may  have  a  cen- 
tralized government  and  yet  become  thoroughly  democratic. 
Already  there  are  signs  of  the  rise  of  local  autonomy,  especially 
in  the  communes  and  cities.  With  assured  democracy  in  the 
central  government  it  is  to  be  exf)ecte(l  thai  tin-  (levelo])mcnl 
of  local  home  rule  will  be  rapid. 

*  The  lowest  French  court  is  ijresidcd  over  by  a  Justice  of  the  Peace  0«J?«  <^« 
paix)  whose  first  duty  is  not  to  hear  l.iw  suits,  but  to  prevent  them  by  acting  as 
arbiter  in  a  prdiniiiuiry  concilialinn.  Many  judicial  cases  are  arbitrated  by  him  and 
thus  settled  without  coming  to  trial. 


THE  FRENCH   CONSTITUTION  — ORIGIN   AND   NATURE      555 

Respecting  the  more  fundamental  part  of  the  constitution, 
which  pertains  to  the  distribution  of  the  high  powers  of  state  and 
the  attainment  of  their  harmonious  working,  France  has  been 
subjected  to  many  changes  scarcely  less  notable  than  those  that 
have  taken  place  in  England  and  America  during  the  corre- 
sponding period.  At  the  time  of  the  French  Revolution  the 
ideas  that  prevailed  in  England  respecting  the  relations  of  the 
King  to  his  ministers,  of  the  ministers  to  one  another,  of  the 
ministers  jointly  and  severally  to  Parliament,  of  the  two  Houses 
to  each  other  and  to  King  and  Cabinet,  differed  greatly  from 
those  of  to-day.  Theories  as  to  these  relationships  have  under- 
gone radical  changes  in  the  course  of  the  century.  The  American 
States  were  especially  fitted  by  their  past  training  as  colonies  to 
reduce  to  practice  Montesquieu's  theory  of  the  division  of  gov- 
ernment into  three  departments,  each  composed  of  separate 
officials  and  all  serving  as  checks  one  upon  another.  Having 
done  this,  they  naturally  applied  the  same  principle  to  the  frame 
of  the  general  government.  The  theory  of  a  separate  executive 
with  independent  powers  determines  the  Presidential  type  of 
government.  At  no  time,  indeed,  has  the  government  been  in 
entire  harmony  with  the  theory  of  the  founders,  and  the  dis- 
crepancy increases  as  the  business  of  governing  becomes  more 
exacting  and  complex. 

Unlike  the  States  of  the  American  Union,  France  had  no  past 
experience  suited  to  encourage  a  trial  of  the  system  advocated 
by  French  philosophers.  It  was  easy  to  provide  for  an  assembly 
having  supreme  legislative  powers,  but  it  was  not  easy  to  har- 
monize the  working  of  such  a  legislature  with  an  independent 
executive.  King,  committees,  directory,  consuls  succeed  one 
another  in  rapid  succession.  Somewhat  of  fixity  was  reached 
when  Napoleon,  the  First  Consul,  became  Emperor  of  the 
French,  in  1804.  But  in  the  meantime  the  legislature  had  been 
so  organized  that  it  could  not  transact  business,  and  both 
executive  and  legislative  power  were  left  in  the  hands  of  the 
Emperor  and  a  Council  of  State  of  his  own  choosing.  When 
the  Bourbons  were  restored,  in  181 5,  it  was  with  the  distinct 
provision  that  the  legislature  should  be  resuscitated,  and  the 
principle  recognized  that  ministers  should  be  responsible  to 
the  legislature.  This  was  made  more  emphatic  under  Orlean- 
ist  rule,  from  1830  to  1848. 


556  COMPARATIVE   FREE   GOVERNMENT 

Carried  along  by  the  great  European  wave  toward  free  govern- 
ment, the  French  proclaimed  the  Second  RepubUc  in  1848. 
The  new  Constitution  provided  for  a  single-chambered  legisla- 
ture elected  by  universal  suffrage  and  for  a  President,  elected 
in  the  same  way.  This  was  distinctly  an  experiment  in  the 
American  Presidential  type  of  government.  Louis  Napoleon, 
the  first  President,  soon  made  himself  master  of  the  state.  In 
the  Constitution  which  he  issued  in  1852  the  independence  of 
the  Executive  is  clearly  stated.  Neither  Emperor  nor  minister 
was  made  responsible  to  the  legislature.  But  a  few  years 
before  his  abdication  Napoleon  III  was  forced  to  proclaim  anew 
the  principle  of  the  responsibilit}-  of  ministers. 

Organization  of  the  Third  Republic.  —  The  century  of  ex- 
perimenting and  constitution-making  has  been  highly  educa- 
tive, and  the  Third  RepubUc  came  into  existence  under  condi- 
tions favorable  to  the  final  union  of  the  people  in  the  support 
of  a  free  republic  having  the  English,  rather  than  the  American, 
form  of  organization.  A  single-chambered  Assembly  was  chosen 
in  187 1,  primarily  to  make  a  treaty  of  peace  with  Germany. 
Although  there  was  an  insistent  popular  demand  for  a  restora- 
tion of  the  Republic,  the  peculiar  conditions  existing  at  the  time 
of  the  election  gave  to  the  Assembly  a  large  majority  of  mon- 
archists who  refused  to  declare  a  republic.  They  did,  however, 
elect  a  President  as  chief  executive  with  power  to  appoint  and 
dismiss  his  ministers.  President  Thiers  himself  favored  a 
repubHc ;  but,  not  having  the  support  of  the  Assembly,  he 
resigned  after  two  years.  The  Assembly  elected  Marshal 
MacMahon,  a  pronounced  monarchist,  as  his  successor.  Be- 
cause of  a  division  among  the  monarchists  no  royal  candidate 
could  command  an  immediate  majority. 

Finally,  in  1875,  the  Assembly,  which  had  been  elected  to 
meet  a  temporary  emergency,  proceeded  to  set  up  a  more  per- 
manent form  of  government,  and  adopted  a  constitution  which 
is  still  in  force.  By  this  document  legislative  power  is  com- 
mitted to  two  houses,  a  Senate  and  a  Chamber  of  Deputies. 
The  Senate  at  first  consisted  of  three  hunrlred  members,  three 
fourths  of  them  chosen  by  a  process  of  indirect  election  in  the 
various  Departments,  the  other  fourth  being  selected  by  the 
Senate  itself.  This  law  was  afterwards  altered  so  that  all  Sena- 
tors are  elected  by  an  indirect  process  in  the  Departments.     The 


THE   FRENCH   CONSTITUTION  — ORIGIN   AND    NATURE      557 

body  which  chooses  the  Senators  is  composed  of :  members  of 
the  Lower  House  representing  the  Departments ;  the  depart- 
mental Council  General;  the  Councils  of  the  Arrondissements 
into  which  the  Department  is  divided ;  and  Delegates  elected 
by  the  Communes.^  All  of  these  various  classes  are  chosen 
by  universal  suffrage.  The  legislative  power  of  the  Senate  is 
concurrent  with  that  of  the  Lower  House,  except  as  to  the  in- 
troduction of  money  bills.  Only  with  the  consent  of  the  Senate 
may  the  President  dissolve  the  chamber  of  Deputies. 

The  Deputies  number  602,  all  elected  at  one  time  by  univer- 
sal suffrage.  Their  term  of  ofBce  is  four  years.  If  a  dissolu- 
tion should  occur,  the  newly  elected  assembly  would  still  be 
entitled  to  the  full  four-year  term,  barring  another  dissolution. 
Two  methods  of  electing  deputies  have  been  made  the  subject 
of  much  dispute  in  French  politics.  The  Assembly  that  pro- 
vided for  the  organization  of  the  Chamber  of  Deputies  in  1875 
was  itself  elected  by  the  voters  in  the  various  Departments  who 
cast  their  ballots  for  all  the  members  to  which  the  Department 
was  entitled.  This  is  called  scrutin  de  liste.  It  is  as  if  the  mem- 
bers of  the  Lower  House  of  the  American  Congress  from  each 
State  were  elected  on  a  general  ticket.  The  Constitution  of 
1875  left  the  method  of  electing  Deputies  to  be  determined  by 
law,  and  the  method  adopted  has  been  election  by  single  dis- 
tricts—  called  scrutin  d'Arrondissemeiil  —  except  between  the 
years  1884  and  1889,  when  the  other  method  was  followed. 
The  age  requirement  for  members  of  the  Chamber  is  25  years; 
for  the  Senate,  40  years.  There  is  no  residence  requirement. 
Provision  is  made  for  the  payment  of  members,  and  since  1906 
the  salary  in  each  house  has  been  15,000  francs. 

In  the  acts  for  the  reorganization  of  the  government  (1875) 
President  MacMahon  was  left  in  full  possession  of  his  office, 
and  provision  was  made  for  the  election  of  future  Presidents  by 
an  absolute  majority  of  votes  of  all  the  members  of  the  Senate 
and  the  Chamber  of  Deputies  united  in  National  Assembly. 
The  term  of  office  was  fi.xed  at  seven  years,  and  the  incumbent 
was  made  eligible  to  reelection. 

The  President  has  the  initiative  in  legislation  concurrently 
with  the  two  Houses.     He  is  without  veto  power,  except  that 

1  Lowell,  "Governments  and  Parties  of  Europe,"  Vol.  I,  p.  20.  For  local 
government  areas  see  below,  pp.  567-569. 


558  COMPARATIVE   FREE   GOVERNMENl' 

he  may  require  the  two  Houses  to  reconsider  a  bill.  He  promul- 
gates the  laws,  superintends  their  execution,  grants  pardons, 
disposes  of  the  armed  forces,  and  is  the  ceremonial  head  of. the 
nation.  Still,  for  every  official  act  the  name  of  a  minister  is 
required.  The  Constitution  expressly  states  that :  "  The 
ministers  are  jointly  and  severally  responsible  to  the  Chambers 
for  the  general  policy  of  the  Government  and  individually  for 
their  personal  acts.  The  President  of  the  Republic  is  responsible 
in  case  of  high  treason  only ;  "  ^  the  President  may  be  tried  be- 
fore the  Senate  for  high  treason  and  the  ministers  may  be  ar- 
raigned for  lighter  offenses.  The  obvious  intention  of  these 
provisions  is  to  set  up  a  responsible  cabinet  government  in  which 
the  President  instead  of  a  king  is  the  formal  head. 

It  should  be  remembered  that  a  majority  of  the  framers  of 
the  Constitution  of  1875  were  monarchists,  as  was  their  Presi- 
dent also.  All  that  was  needed  to  fulfill  their  desires  was  for  the 
President  to  give  place  to  the  Count  of  Paris  as  an  Orleanist  King. 

The  first  elections  under  the  new  Constitution  gave  to  the 
republicans  a  large  majority  in  the  Chamber  of  Deputies,  while 
in  the  Senate  monarchists  and  republicans  were  nearly  balanced. 
A  conflict  ensued  between  the  republican  Chamljcr  and  the 
monarchist  President,  the  latter,  contrary  to  law,  taking  an 
active  part  in  party  politics.  In  1877  the  Chamber  was  dis- 
solved with  the  consent  of  the  Senate,  and  the  election  follow- 
ing returned  a  still  more  determined  and  radical  republican 
majority.  The  Senate  having  become  republican  also.  Presi- 
dent MacMahon  resigned  in  1879,  and  M.  Grevy,  a  radical 
republican,  succeeded  to  the  office.  All  branches  of  the  govern- 
ment have  since  remained  in  the  hands  of  the  republican  party. 

The  Constitution  of  i<S75  was  the  result  of  a  compromise  be- 
tween monarchists  and  republicans.  Each  party  expected  to 
carry  the  election  and  thus  to  control  the  future  government. 
The  monarchists,  while  incidentally  recognizing  the  existing 
rei)ublic,  ho[)ed  by  slight  changes  to  adapt  its  Constitution  to 
a  monarchy.  In  either  case  the  government  would  be  in  the 
hands  of  a  Cabinet  of  ministers  responsible  to  the  legislature. 
Of  all  the  French  constitutions  that  of  1875  is  the  briefest. 
Everything  is  omitted  except  the  bare  framework  of  the  execu- 
tive  and    legislative   de])artments   of   government.     No    refer- 

'  Law  on  the  Organizaliou  of  llii-  I'uljlic  rowers,  I'cIj.  25,  1875,  Art.  0. 


THE   FRENCH  CONSTITUTION  — ORIGIN  AND    NATURE      559 

ence  is  made  to  the  judiciary.  Details  are  left  to  be  filled  in  by 
the  legislature  or  by  the  executive.  The  method  of  choosing 
Senators  was,  however,  described  with  considerable  particu- 
larity ;  yet,  by  an  amendment  of  1884,  it  was  declared  that  this 
part  of  the  act  should  cease  to  have  constitutional  force,  thus 
leaving  the  legislature  in  lull  control  of  the  matter.  Amend- 
ments have  been  added  to  insure  the  permanence  of  the  Re- 
public. All  members  of  the  families  that  have  reigned  in  France 
are  excluded  from  office,  and  the  Constitution,  as  changed, 
makes  it  illegal  to  propose  an  amendment  to  restore  the  mon- 
archy.^ 

The  method  of  amending  provided  for  in  the  Constitution  of 
1875  requires  each  House,  by  majority  of  all  its  members,  to 
vote  that  a  change  in  the  constitution  is  desirable.  Then  the 
two  Houses  must  meet  in  joint  session  as  a  National  Assembly 
and  act  upon  the  proposed  changes.  Amendments  to  the 
Constitution  are  thus  secured  by  a  modified  process  of  legisla- 
tive action.  No  popular  ratification  is  required.  Only  twice 
has  the  National  Assembly  been  called  to  consider  changes  in 
the  Constitution.  Except  the  acts  referred  to  above,  the 
changes  are  of  minor  consequence.  Although  the  Constitution 
is  written,  although  it  is  solemnly  enacted  law,  there  is  no  means 
of  enforcement  other  than  an  appeal  to  public  opinion  or  to  the 
agencies  relied  upon  for  enforcing  the  ordinary  statutes.  Pres- 
ident Poincare  expresses  the  conviction  that  if  a  National 
Assembly  should  pass  an  act  restoring  the  monarchy,  it  would  i)e 
the  duty  of  the  President  to  refuse  to  promulgate  it ;  yet  he 
qualifies  the  statement  by  the  observation  that  the  strength  of 
the  Republic  rests  with  pubHc  opinion  rather  than  in  constitu- 
tional prohibition.^ 

French,  English,  and  American  Constitutions.  —  A  few  words 
on  the  nature  of  the  French  Constitution  as  compared  with  those 
of  England  and  of  America  are  in  order  here.  It  is  contrary 
to  the  genius  of  the  French  people  to  permit  any  custom,  or 
understanding,  or  usage,  either  to  obscure  the  law  or  to  usurp 
the  place  of  law.  French  courts  are  not  permitted  to  interpret 
or  apply  the  law  according  to  a  previous  decision  of  the  same  or 
of  another  court.     Each  court,  at  the  time  of  action,  is  required 

1  Lowell,  "  Governments  and  Parties  in  Continental  Europe,"  Vol.  I,  p.  12. 
'  Poincar6,  "How  France  is  Governed,"  p.  i6j. 


560  COMPARATIVE   FREE   GOVERNMENT 

to  apply  the  law  as  then  understood.  If  there  are  uncertain- 
ties or  confused  and  contradictory  decisions,  the  remedy  is 
sought  either  through  new  statutes  or  new  administrative  rules, 
or  through  a  bench  of  jurists  intrusted  with  the  especial  duty 
of  promulgating  general  rules  for  the  guidance  of  judges.  In 
any  event,  the  assumption  prevails  that  the  law  is  definite  and 
positive,  equally  well  understood  by  all  subjects ;  that  law  is 
not  a  mysterious  rule  of  action  discoverable  only  by  the  high 
priests  of  an  occult  science. 

It  is  unthinkable  that  such  a  people,  keen,  positive,  and  logical 
in  their  mental  habits,  should  endure  a  constitution  based  upon 
mere  sentiment,  or  composed  of  customs,  or  understandings,  or 
rules  of  conduct,  which  are  not  themselves  laws,  but  which  trav- 
erse the  law  and  are  treated  as  if  they  were  above  law.  In 
France  the  rule  making  the  ministers  responsible  to  the  legisla- 
ture is  a  written  law.  In  England  the  rule  is  a  mere  under- 
standing, while  the  old  forms  of  law  subjecting  the  ministers 
to  the  Crown  remain  unchanged.  Custom  and  understandings 
have  been  permitted  to  nullify  the  law.  The  French  as  well  as 
the  English  have  customs ;  they  have  certain  ways  of  doing 
things ;  but  when  a  conflict  between  custom  and  law  is  raised, 
either  custom  is  condemned  or  the  law  is  changed.  The 
greater  part  of  the  English  Constitution  is  a  subjective  expe- 
rience, a  state  of  mind  associated  with  a  thousand  years  of 
national  history.  There  was  no  distinctly  recognized  constitu- 
tion in  France  until  a  state  of  mind  induced  by  a  long  period  of 
tyranny  expressed  itself  in  the  destruction  of  despotism  and  the 
substitution  of  government  founded  upon  the  will  of  the  people. 
Their  Constitution  was  not  merely  a  written  declaration  of  prin- 
ciples, but  an  embodiment  of  these  i)rincii)les  in  an  actual  frame 
of  government.  The  French  method  requires  that  when  the 
government  changes,  corresponding  alterations  shall  take  place 
in  the  written  Constitution.  The  eleven  constitutions  have 
each  and  all  embodied  the  fundamental  princii^les  of  the  orig- 
inal one;  they  are  so  many  attempts  to  harmonize  the  letter 
of  the  law  and  the  actual  government.  How  many  constitu- 
tions would  have  been  issuerl  in  England  during  the  same  period 
if  the  French  methofl  had  been  followed?  It  is  the  glory  of 
the  ICngHsh  Constitution  that  its  marvelous  adaptation  to  the 
ever  changing  demands  of  |)uljlic  opinion   "  conu-tii    no!    with 


THE   FRENCH   CONSTITUTION— ORIGIN   AND   NATURE      561 

observation."  After  ten  trials  the  French  have  apparently 
created  a  constitutional  government  with  all  the  flexibility  of 
the  EngHsh,  while  at  the  same  time  subject  to  definitely  enacted 
law. 

The  contrast  with  the  Constitution  of  the  United  States  is 
scarcely  less  striking.  Both  countries  have  written  constitu- 
tions which  are  definitely  enacted  law.  In  America  the  real 
constitution  is  not  found  in  the  words  of  the  document,  but  in 
the  ruHngs  of  the  courts  interpreting  it,  a  vast  body  of  constitu- 
tional law  resting  upon  judicial  decisions.  The  French  Consti- 
tution consists  of  a  few  brief  enactments  providing  for  a  Cabinet 
form  of  government.  Executive  and  Legislature  are  left  with 
a  free  hand  to  do  what  seems  best  for  the  state,  not  infiuenced 
or  hampered  by  appeals  to  custom  or  usage  as  in  England,  and 
in  no  way  controlled  by  judicial  decisions  as  in  the  United  States. 
The  only  appeal  to  past  experience  is  by  way  of  reminder  that 
there  are  yet  unfulfilled  ideals  in  the  principles  proclaimed  in 
the  Revolution  of  1789. 

REFERENCES 

DoDD.     Modern  Constitutions,  Edition  1909,  Vol.  I,  pp.  283  ff. 

Lowell.     Governments  and  Parties  in  Continental  Europe,  Vol.  I,  Chaps.  I, 

II. 
Ogg.     The  Governments  of  Europe,  Chaps.  XV-XVIII. 
PoiNCARE.     How  France  is  Governed,  London,  1913,  Chaps.  I-VI. 
Seignobos.     a   Political  History  of  Contemporary  Europe,  London,  1901, 

Vol.  I,  Chaps.  V-VII. 


CHAPTER  XL VII 

The  Executive  in  Fr.vnce 

The  President  of  the  French  Republic  serves  for  a  term  of 
seven  years.  He  is  eUgible  for  reelection,  has  a  salary  of  600,000 
francs  (Si 20,000),  and  an  equal  allowance  for  household  ex- 
penses. The  pomp  and  circumstance  of  the  office  are  like  those 
of  a  king  or  emperor.  The  office  is  open  to  all  citizens  except 
the  members  of  families  which  have  reigned  in  France.  One 
would  think  that  an  office  with  such  attractions  would  make  a 
disturbing  appeal  to  the  ambition  of  poUticians.  As  a  matter 
of  fact  the  election  of  the  President  commands  little  pubHc 
attention  or  general  interest.  A  month  before  the  end  of  the 
presidential  term  the  two  Houses  of  the  Legislature  meet  in 
National  Assembly  at  Versailles  and  choose  the  next  President. 
He  is  usually  one  of  their  own  number,  is  sure  to  be  a  states- 
man of  experience,  and  is  naturally  associated  with  the  party 
groups  which  at  the  time  command  a  majority  in  the  Legis- 
lature. 

Various  attemi)ts  have  been  made  in  France  to  separate  legis- 
lative and  executive  powers,  bui  in  each  case  either  anarchy  or 
the  subordination  of  the  legislature  has  ensued.  Monsieur 
Thiers  (187 1),  the  first  President  of  the  Third  Republic,  was 
chcjsen  by  the  Assembly  and  was,  in  a  sense,  responsible  to  it, 
though  he  personally  exercised  the  power  of  appointing  and 
dismissing  his  ministers.  The  President,  being  at  the  same 
time,  in  effect,  Prime  Minister  also,  was  subject  to  the  continuous 
criticism  of  the  Assembly.  When  he  found  that  his  poHcies 
were  not  su[)[)orted  he  resigned  (1873).  MacMahon,  the 
second  President,  was  in  a  like  position  until  the  adojjtion  of 
the  Constitution  of  1875.  Then  the  President  was  no  longer 
responsible  to  the  Assembly.  He  was  removed  from  personal 
contact  with  the  ParManicnt  and  in  his  ])hice  was  estabUshcd  a 
responsible  Cabinet  of  Ministers.     France  was  thus  transferred 


THE  EXECUTIVE   IN   FRANCE  563 

to  the  cabinet  type  of  government  with  an  elected  President 
holding  the  place  of  the  monarch  in  England. 

The  President  thus  chosen  cannot  be  the  object  of  patriotic 
sentiment  and  the  symbol  of  unity  in  the  state  as  is  the  King  of 
England.  When  the  citizens  of  the  Republic  do  honor  to  a 
public  officer,  sentiment  attaches  not  to  individual  or  family, 
but  to  the  state.  The  symbol  of  unity  is  the  tricolor.'  If  the 
President  is  not  criticized,  it  is  because  his  acts  are  not  deemed 
worthy  of  criticism,  rather  than  because  of  any  sentiment  asso- 
ciated with  the  office.  Since  1875  three  Presidents  have  been 
induced  to  resign  on  account  of  adverse  criticism.  MacMahon 
resigned  on  account  of  his  failure  to  restore  the  monarchy. 
Grevy  resigned  (1877)  because  of  revelations  of  corruption  in 
his  family,  and  Cassimir-Perier,  called  to  the  office  upon  the 
assassination  of  Carnot  in  1894,  resigned  after  a  few  months, 
because  of  difficulties  in  maintaining  a  ministry.  Only  three 
Presidents  have  served  the  full  term  of  seven  years.  In  the 
normal  working  of  the  system  the  President  is  not  the  object 
of  criticism,  because  his  duties  are  usually  not  of  a  partisan 
character.  The  Prime  Minister  and  the  Cabinet  bear  the  brunt 
of  partisan  attacks.  It  is  a  great  advantage  of  the  Presidency 
as  compared  with  the  Monarchy  that  the  chief  executive  is 
always  a  man  of  mature  age,  an  experienced  statesman  and 
politician.  Perchance,  he  has  himself  been  Prime  Minister  or 
President  of  one  of  the  Chambers  of  the  Legislature,  and  is  thus 
thoroughly  acquainted  with  the  working  of  the  government. 
On  the  other  hand,  it  has  been  shown  in  the  chapter  on  the 
English  Crown,  that  monarchy  has  likewise  certain  advantages 
which  can  never  attach  to  a  temporary  chief  executive,  and  the 
balance  of  merit  may  be  fairly  even.  It  is  hence  of  interest  to 
the  free  governments  of  the  world  that  both  systems  should 
continue  to  exist.  France  is,  at  least,  rendering  valuable  serv- 
ice to  all  peoples  living  under  a  monarchy  by  making  a  dem- 
onstration of  an  easily  available  substitute  for  an  unsatisfac- 
tory royal  family. 

President,  Cabinet,  and  Councils.  —  The  powers  and  duties 
which  the  French  President  may  exercise  upon  his  own  respon- 
sibility are  not  numerous.     Of  these  by  far  the  most  important 

1  The  refusal  of  the  Bourbon  candidate  to  recognize  the  flag  of  the  Revolution 
caused  his  defeat  in  1877. 


564  COMPARATRK   FREE    GOVERNMEXT 

is  the  formation  of  a  ministry.  The  President  must  select  a 
body  of  men  who  are  responsible  to  the  legislature  and  to  the 
country  for  the  conduct  of  the  government.  This  duty  in 
France  is  far  more  onerous  than  the  corresponding  service  in 
England.  The  King  has  practically  no  choice  in  the  matter,  if 
English  parties  are  in  their  normal  condition.  But  the  normal 
condition  in  France  lays  upon  the  Chief  Executive  the  often 
difficult  task  of  discovering  a  statesman  willing  and  able  to 
form  a  workable  ministry.  The  Prime  Minister  in  France  is  a 
legally  recognized  officer,  his  official  designation  being  President 
of  the  Council.  The  outgoing  Prime  Minister  countersigns  the 
decree  appointing  his  successor,  but  it  is  the  President  of  the 
Republic  who  really  makes  the  selection. 

With  the  Prime  Minister  in  office  cabinet  responsibility 
begins,  other  appointments  being  upon  the  recommendation 
of  the  chief  minister.  Cabinet  crises  in  France  follow  each 
other  in  rapid  succession.  Rarely  does  a  ministry  endure  for 
two  years.  On  an  average,  there  is  a  new  ministry  every  year. 
An  adverse  vote  in  the  Chamber  of  Deputies  produces  a  cabinet 
crisis ;  the  members  resign  in  a  body  and  the  President  must 
find  a  new  President  of  the  Council.  It  is  quite  in  order  for 
members  of  the  former  Cabinet  to  accept  office  under  the  new 
Prime  Minister.  In  fact,  a  complete  change  in  the  membership 
of  the  Cabinet  is  unusual. 

The  President  of  the  Republic  remains  in  much  closer  touch 
with  the  Cabinet  than  does  the  King  of  England.  He  not  only 
attends,  but  he  presides  over  the  meetings  of  the  Council  of 
Ministers.  These  occur  usually  twice  each  week.  Once  a  week 
or  oftcner  the  Ministers  also  hold  a  session  of  their  own  at 
which  the  Prime  Minister  jiresides.  This  is  called  a  Cabinet 
Council.  Of  these  meetings  President  Poincarc  says,  "  The 
Council  of  Ministers  deals  with  the  more  important  business, 
the  Cabinet  Council  with  current  questions  of  internal  politics.'" 
lioth  councils  are  composed  of  the  same  ministers.  The  meet- 
ings are  secret;  no  minutes  of  the  proceedings  are  kept. 
Through  this  direct  connection  with  the  ministers  the  President 
may  exert  much  influence,  i)ut  for  all  official  acts  the  ministers 
are  responsible.  'I'hc  Constitution  gives  to  the  President  the 
power  to  negotiate  and  ratify  treaties,  but  permits  him  to  exer- 

'  "  I  low  I'r.incc  is  CJovcrncd,"  p.  k;?. 


THE  EXECUTIVE  IN  FRANCE  565 

cise  this  power  only  by  and  through  a  responsible  minister  and 
with  cabinet  approval.  A  list  of  subjects  for  treaties  which  re- 
quire legislative  approval  before  they  are  valid  is  given  in  the 
laws.  There  are,  however,  important  treaties  which  are  en- 
tirely in  the  hands  of  the  Executive,  and  their  terms  may  be 
state  secrets.  The  alliance  with  Russia  is  the  result  of  such 
a  treaty. 

The  President  undoubtedly  has  a  free  hand  in  the  appoint- 
ments to  office  in  his  household,  although  appointments  in 
general  are  ministerial  rather  than  presidential.  Pardons,  the 
general  administration  of  the  laws,  the  disposing  of  military 
forces,  are  all  in  the  hands  of  the  Council  of  Ministers,  subject 
to  such  influence  as  the  President  may  exert. 

Besides  the  Cabinet  Council  and  the  Council  of  Ministers, 
there  is  a  third  body  called  the  Council  of  State,  composed  of 
more  than  fifty  members,  selected,  in  recent  years,  by  the 
Council  of  Ministers.  The  Council  of  State  originated  in  the 
system  of  the  First  Napoleon.  It  exercises  legislative  and  judi- 
cial as  well  as  executive  functions.  With  the  rise  of  the  Cabinet 
many  of  the  legislative  and  administrative  duties  of  the  older 
body  passed  to  the  Council  of  Ministers,  while  in  recent  years 
its  judicial  functions  have  been  greatly  amplified.  Histori- 
cally, the  Council  of  State  fills  an  important  place  in  the  evolu- 
tion of  the  Cabinet.  Napoleon  governed  by  means  of  this 
Council,  whose  membership  he  controlled.  With  the  increase 
of  power  in  the  legislative  assemblies  the  powers  of  the  Council 
of  State  diminished.  With  the  advent  of  the  Cabinet  the  older 
Council  became  an  assistant  to  the  Council  of  Ministers. 
Through  its  committees  it  aids  the  ministers  in  various  lines  of 
administration,  and  it  may  also  be  called  upon  to  formulate  a 
system  of  by-laws  for  the  Executive. 

French  Method  of  Legislation.  —  No  proper  comparison  can 
be  made  of  the  relation  of  the  executive  and  legislative  depart- 
ments in  France  and  England  without  taking  account  of  a  radi- 
cal difference  in  the  partition  of  business  between  the  two  de- 
partments. In  England  and  in  the  United  States,  it  is  the  aim 
of  the  Legislature  to  furnish  in  the  statutes  minute,  detailed 
directions  to  the  Executive.  The  laws  are  so  drawn  as  to  leave 
to  the  administrative  officers  little  or  no  discretion.  The  ideal 
set  before  the  legislators  is  to  foresee  and  provide  in  the  wording 


566  CO:\IPARATIVE   FREE   GOVERNMENT 

of  the  bills  for  all  possible  contingencies.  In  France,  and  in 
all  other  countries  apart  from  the  Anglo-Saxon  world,  the  work 
of  the  Legislature  is  comparatively  simple  and  easy.  There  is 
no  effort  to  foresee  and  provide  for  doubtful  contingencies. 
The  statutes  are  drawn  in  general  terms  giving  clearly  the  re- 
quirements of  the  state,  but  leaving  to  the  Executive  the  addi- 
tion of  all  needed  details.  Administrative  officers  thus  assume 
and  fulfill  the  more  difficult  functions  of  English  and  American 
Legislatures. 

To  supply  needed  rules  supplementary  to  the  statutes,  the 
President  of  the  French  Republic  issues  general  orders  and 
decrees ;  the  Council  of  Ministers  formulates  by-laws ;  each 
Minister  gives  general  orders  and  directions  in  his  own  depart- 
ment ;  or,  the  ministers  may  call  upon  the  Council  of  States 
to  prepare  a  system  of  by-laws  on  assigned  subjects.  Moreover, 
in  each  Department  there  is  a  Prefect  and  in  each  Commune  a 
Mayor,  who  has  the  power  of  issuing  by-laws.  In  these  various 
ways  the  executive  department  amplifies,  explains,  and  applies 
the  acts  of  the  legislature.  In  theory,  at  least,  no  by-law  is  per- 
mitted to  change  or  violate  the  statutes ;  all  are  intended  to 
meet  their  requirements.  Even  in  matters  of  finance  there  is 
a  limited  field  for  executive  discretion.  Revenues  may  be 
increased  and  credits  extended  to  meet  unforeseen  needs. 
Under  such  a  system  the  work  of  the  Cabinet  in  the  Legislature 
cannot  be  as  exacting  and  as  important  as  in  England ;  and  the 
administrative  role  is  corrcsi){)ndingly  more  important. 

Responsibility  of  Ministers.  —  The  French  Constitution 
states  that  Ministers  shall  be  jointly  and  severally  responsible 
to  the  Legislature,  but  gives  no  intimation  as  to  the  number  of 
Ministers  or  as  to  who  shall  organize  the  administrative  de- 
partments. The  Executive  itself  has,  therefore,  assumed  the 
function  of  organization.  The  Legislature,  by  implication, 
expresses  ajiproval  of  the  act  by  voting  su|)i)lics  to  each  new 
dei)artment.  There  arc  not,  as  in  England,  non-cabinet 
Ministers.  Neither  are  there  sinecures,  as  in  the  Fnglish  minis- 
try, nor  officers  corresjjonding  to  j)arlianK'ntary  and  under 
secretaries.  Twelve  men,  each  of  whom  is  the  head  of  an  im- 
portant administrative  department,  assume  the  entire  ])urden 
of  a  responsible  Ministry.  The  following  are  the  names  of  the 
departments:    Justice;     Foreign    Affairs;     Interior,    or   Home 


THE   EXECUTIVE   IN   FRANCE  567 

Affairs ;  Finance ;  War ;  Marine ;  Public  Instruction  ;  Public 
Works;    Commerce;    Agriculture;    Colonies;    Labor.' 

The  Prime  Minister  chooses  any  one  of  the  departments.  If 
he  is  not  the  Minister  of  Justice,  the  holder  of  that  office  is 
ex  officio  Vice  President  of  the  Council  of  Ministers.  Ministers 
are  nearly  always,  though  not  necessarily,  members  of  one  of 
the  two  Houses  of  the  Legislature.  All  the  members  of  the 
Cabinet,  whether  members  of  the  Legislature  or  not,  have 
free  access  both  to  the  Senate  and  to  the  Chamber  of  Deputies. 
In  each  of  the  Houses  the  ministers  are  privileged  speakers  on 
all  matters  pertaining  to  the  business  of  their  several  depart- 
ments. Because  of  this  privilege,  the  officers  of  government 
monopolize  a  large  proportion  of  the  time  of  the  legislature, 
especially  of  the  Chamber  of  Deputies. 

The  letter  of  the  Constitution  makes  the  Cabinet  responsible 
to  the  two  Houses;  but  various  features  of  the  law  tend  to 
restrict  this  responsibility  to  the  Lower  House.  The  Senate  is 
a  permanent  body.  Its  members  serve  for  a  long  period  — • 
nine  years.  They  are  elected  by  an  indirect  process,  one  third 
of  the  number  every  three  years.  Naturally  the  Senate,  with 
its  high  age  requirement,  responds  more  slowly  to  changes  in 
public  opinion.  It  is  evidently  fitted  to  be  a  conservative, 
regulative  Second  Chamber.  There  is  no  provision  for  dissolving 
the  Senate,  and  its  consent  is  required  for  a  dissolution  of  the 
Chamber.  In  practice,  therefore,  ministerial  responsibility  is 
to  the  Chamber,  which  receives  a  direct  mandate  from  the  voters 
once  in  four  years,  or  oftener  in  case  of  dissolution.  An  adverse 
vote  in  the  Senate  does  not  cause  a  cabinet  crisis.  The  few 
instances  where  the  attitude  of  the  Senate  has  appeared  effec- 
tive in  driving  a  Ministry  from  office  are  explained  as  exceptions 
or  as  mere  excuses  for  resignation  on  the  part  of  a  weak  Cabinet 
lacking  adequate  support  in  the  Chamber  of  Deputies. ^  The 
real  political  battles  which  count  in  the  Government  of  the 
country  are  waged  in  the  popular  Chamber. 

The  administration  of  the  central  government  extends  to  the 
minutest  details  of  local  government.  The  country  is  divided 
into  86  Departments,  362  Arrondissements,  nearly  3000  Can- 
tons, and  more  than  36,000  Communes.     In  its  chief  outlines 

1  The  War  Cabinet  of  August  26,  igi4,  had  14  members. 

2  Lowell,  "  Governments  and  Parties  in  Continental  Europe,"  Vol.  I,  p.  22. 


568  COMPARATIVE   FREE   GOVERNMENT 

the  system  is  a  product  of  the  Revolution.  It  is  artificial  in 
the  extreme,  the  boundaries  being  fixed  without  reference  to 
former  community  life.  The  statesmen  of  the  Revolution  in- 
tended to  create,  out  of  hand,  a  complete  system  of  local  govern- 
ment. They  did  create  the  geographical  boundaries  for  local 
government,  but  they  could  not  create  the  habits  and  experi- 
ence required  for  successful  local  autonomy.  The  First  Napo- 
leon organized  a  centralized  system  of  administration,  using  the 
local  areas  as  a  framework  and,  with  some  important  modifica- 
tions, it  still  survives. 

For  purposes  of  convenient  local  autonomy  there  are  too 
many  subdivisions ;  a  citizen  cannot  maintain  a  lively  corporate 
interest  in  four  distinct  areas.  Both  the  Arrondissement  and 
the  Canton  are  mere  districts,  with  no  corporate  qualities. 
They  own  no  property  and  do  not  of  themselves  levy  and  collect 
taxes.  The  Arrondissement,  as  a  subdivision  of  the  Depart- 
ment, serves  as  a  district,  for  departmental  administration.  It 
has  a  Subprefect,  who  is  subject  to  the  orders  of  the  Prefect, 
and  an  elected  Council  with  only  advisory  powers.  It  is  also 
the  legislative  district  for  choosing  members  of  the  Chamber  of 
Deputies.  Cantons  serve  as  districts  for  the  Justices  of  the 
Peace  and  for  choosing  members  of  the  Council  General  of  the 
Department. 

The  Department  and  the  Commune  are  corporate  bodies. 
Potentially  they  are  centers  for  the  development  of  local  govern- 
ment ;  they  are,  however,  under  the  control  of  the  Central 
Government. 

The  Prefect  of  the  Department  is  the  officer  through  whose 
agency  France  is  governed.  One  may  gain  an  idea  of  the 
significance  of  this  ofiice  by  eliminating  the  American  State 
ofiiccrs  and  placing  in  the  hands  of  a  single  appointee  of  the 
President  the  business  of  the  state  legislatures,  tl\e  state  execu- 
tives, and,  to  a  large  extent,  of  the  counties,  cities,  and  school 
districts.  The  Prefect  governs  (he  Dejmrtment  subject  to  the 
orders  of  the  Minister  of  the  Interior.  This  was  the  character  of 
the  office  as  established  by  Napoleon  1.  Under  the  Third  Repub- 
lic modifications  have  been  introduced  which  are  fitted  to  de- 
velop into  a  limitation  on  the  jjower  of  the  central  government. 

Local  Government.  —  Ivich  of  the  Cantons  within  the  De- 
partment elects,  by  universal  male  suffrage,  one  member  of  a 


THE  EXECUTIVE  IN  FRANCE  569 

Council  General  for  the  Department.  Members  of  this  Council 
hold  offices  for  a  term  of  six  years,  one  half  retiring  every  three 
years.  The  Council  holds  two  short  sessions  each  year,  and 
no  important  powers  are  conceded  to  it.  Subject  to  the  veto 
of  the  Central  Government,  it  may  adopt  resolutions  on  purely 
local  matters  and  apportion  direct  taxes  to  the  Arrondissements. 
All  the  acts  of  the  Council  are  under  the  guidance  of  the  Prefect 
of  the  Department.  He  prepares  the  budget  to  be  voted.  Even 
the  measures  enacted  by  the  Council  General  are  in  his  hands  to 
be  enforced  or  not  at  his  will.  The  Council  has  no  means  of 
enforcement.  There  is,  however,  a  representative  committee, 
or  commission,  appointed  by  it,  whose  duties  are  purely  advis- 
ory. In  fact,  the  Council  General  has  no  independent  authority. 
The  Prefect  or  the  Minister  of  the  Interior  may  issue  orders 
which  are  enforced  as  law;  but  the  acts  of  this  representative 
assembly  are  treated  as  recommendations,  not  as  laws.  Its  very 
existence  is  precarious,  since  it  may  be  dissolved  by  the  Central 
Government.  The  importance  of  the  Council  General  consists 
not  in  what  it  has  done,  but  in  what  it  may  yet  become.  Presi- 
dent Poincare,  after  describing  the  Council  in  action,  says :  "  If 
you  have  attentively  followed  the  proceedings  of  the  council 
you  will  doubtless  receive  the  impression  that  there  are  unem- 
ployed forces  here,  and  that  the  citizens  ought  to  strive  to 
make  the  departmental  organism  more  active  and  energetic."^ 
This,  it  may  be  seen,  is  the  expression  of  a  hope  for  the  future  of 
French  democracy  rather  than  an  attainment.  Primary  in- 
terest is  still  absorbed  in  the  one  problem  of  gaining  a  more 
effective  popular  control  over  the  general  government.  Democ- 
racy in  France  has  not  yet  reached  the  decentralizing  stage. 

The  communes,  like  the  other  local  institutions,  received  the 
stamp  of  artificiality.  They  were  made  practically  identical 
in  their  forms.  A  rural  commune  consisting  of  less  than  a 
hundred  people  has  a  frame  of  government  similar  to  that  of 
Bordeaux  with  nearly  half  a  million.  Paris  and  Lyons  are, 
however,  favored  with  special  local  organizations.  In  each 
commune  there  is  a  Council  elected  by  universal  suffrage  every 
four  years.     The   number   composing   it   varies,   according   to 

>  Poincari',  "How  France  is  Governed,"  p.  70;  Lowell,  "Governments  and 
Parties  in  Continental  Europe,"  Vol.  I,  p.  38;  Ogg,  "The  Governments  of  Eu- 
rope," p.  346. 


570  COMPARATIVE   FREE   GOVERNMENT 

population,  from  ten  to  thirty-six.  All  members  are  elected  at 
the  same  time,  and  by  scrutin  dc  lisle,  or  general  ticket.  The 
Mayor,  with  one  or  more  Assistants,  is  elected  by  secret  ballot 
in  the  Council  from  its  own  number. 

While  in  its  present  form  of  organization  the  commune  is 
recent  and  artificial,  it  is  associated  historically  with  the  remote 
past.  Towns  and  cities  played  an  important  part  in  the  de- 
struction of  feudal  despotism.  The  larger  cities  maintained 
also  traditions  of  resistance  to  centralized  autocracy.  The 
commune,  therefore,  is  the  one  modern  local  institution  which 
calls  forth  strong  personal  sentiment.  It  also  has  a  modicum 
of  independent  governmental  power.  Unlike  the  department,  it 
is  provided  with  a  locally  elected  executive.  The  mayor  and 
his  assistants  perform  the  double  function  of  administering 
general  and  local  orders.  As  agents  of  the  General  Government 
they  act  under  the  direction  of  the  Prefect  of  the  Department. 
As  local  officers  they  carry  into  effect  policies  adopted  by  the 
Communal  Council.  On  a  few  matters  purely  local  the  Council 
and  mayor  may  act  without  consulting  the  higher  authorities, 
though  the  exercise  of  independent  powers  is  guarded  in  many 
ways.  The  Mayor  may  be  suspended  for  a  month  by  order 
of  the  Prefect;  for  three  months  by  the  Minister  of  the  In- 
terior ;  and  he  may  be  removed  from  office  by  the  President  of 
the  Republic.  Only  a  limited  number  of  the  resolutions  of 
the  Council  are  of  themselves  valid  ;  others  require  the  approval 
of  the  Prefect ;  still  others  more  important,  the  approval  of  the 
central  government ;  others  more  important  still  must  be  sub- 
mitted to  the  Senate  and  the  Chamber  of  Deputies.  A  few  of 
the  great  cities  have  a  larger  measure  of  local  autonomy  than 
the  smaller  communes. 

From  this  brief  description  it  is  evident  that  the  President 
of  the  Re[)uljlic  and  the  twelve  members  of  the  Cabinet  are 
responsible  for  the  administration  of  the  entire  government, 
local  as  well  as  general.  Not  only  do  executive  ofllcers  ad- 
minister the  laws;  to  a  large  extent  they  also  make  the  laws, 
since  they  issue  acts  sui)pkmonling  the  brief  statutes  emanating 
from  the  legislature.  In  locd  matters  administrative  officers 
rather  than  municipal  assemblies  exercise  the  lawmaking 
function.  Powers  are  thus  d-nl  rali/.cd  in  the  Executive.  The 
one  means  of  popular  control  is  through  the  two  houses  of  the 


THE  EXECUTIVE  IN  ERANCE  571 

Legislature.     The  system  involves  cabinet  responsibility  to  the 
Chamber  of  Deputies. 

The  relation  of  the  Executive  to  the  Judiciary  is  discussed  in 
later  chapters.  In  the  French  use  of  the  term  an  independent 
judiciary  means  a  judiciary  which  in  no  way  interferes  with  ad- 
ministrative officers :  i.e.,  Judges  do  not  hear  complaints  on 
account  of  official  wrongdoing.  If  citizens  suffer  from,  illegal 
acts,  they  may  appeal  for  redress  to  higher  officers  in  the  execu- 
tive or  they  may  call  the  Cabinet  to  account  in  the  Chamber 
of  Deputies.  A  third  method  of  protection  against  adminis- 
trative abuse  is  provided  for  in  administrative  tribunals  in  which 
cases  of  alleged  violation  of  law  may  be  investigated  and  de- 
cisions rendered.  Associated  with  the  Prefect  in  each  depart- 
ment there  is  a  Council  which  acts  as  a  tribunal  in  matters  of 
administrative  disputes.  The  Council  of  State  also  serves  as 
a  tribunal  to  hear  appeals  from  the  departmental  councils  and 
complaints  against  the  higher  ofi&cers  of  state. ^ 

REFERENCES 

(See  Chap.  XL VI  for  general  references.) 

MuNRO.     The  Government  of  European  Cities,  Chap.  I. 

PoiNCARE.     How  France  is  Governed,  Edition  1913,  Chaps.  VII,  VIII. 

Shaw.     Municipal  Government  in  Continental  Europe. 

Wilson.     The  State,  Edition  of  1S98,  pp.  224-244. 

1  For  further  elaboration  of  the  topic  see  below,  p.  5S9. 


t 


CHAPTER  XLVIII 

The  Legislature  and  Political  Parties 

Legislative  halls  on  the  Continent  of  Europe  have  the  seats 
arranged  in  a  semicircle,  facing  the  presiding  officer.  In  all 
of  these  assemblies  there  is  the  same  traditional  arrangement 
for  the  location  of  the  party  members.  Extreme  conservatives 
and  reactionaries  occupy  the  seats  to  the  right  of  the  President ; 
extreme  radicals  occupy  the  seats  to  his  left ;  the  moderates 
sit  in  the  center.  Parties  are  named  from  their  respective  posi- 
tions in  the  hall,  as,  —  the  Party  of  the  Right  and  of  the  Right 
Center,  the  Party  of  the  Left  and  of  the  Left  Center.  There 
may  be  a  fifth  designation,  —  the  Party  of  the  Center.  The 
actual  party  organizations  are  usually  more  numerous  and 
,  their  relations  to  one  another  more  complex  and  confusing  than 
is  this  division  into  four  or  five  leading  groups ;  but  in  its  chief 
outlines  this  order  holds  true  for  party  divisions  in  Continental 
legislatures. 

In  some  of  its  features  the  English  Cabinet  system  is  quite 
unworkable  in  a  legislature  so  organized.  The  multiplicity  of 
party  groups  calls  for  a  different  plan.  The  French  Chamber 
of  Deputies  is  a  good  example  of  the  Continental  type  of  cabinet 
government.  Like  the  English,  the  French  system  fuses 
Legislature  and  Executive ;  it  makes  the  Cabinet  responsive 
to  and  dependent  uj)on  the  votes  of  the  Assembly.  It  is  a  true 
cabinet  government  having  corporate  responsibility,  but  its 
relation  to  (he  political  parties  is  radically  diflerent.  The 
French  Cal^inet  is  not  itself  a  party  organization,  as  is  the 
English.  Parties  in  l<>ance  are  organized  to  influence  govern- 
ment; not  to  govern.  'I'he  l*'nglish  Cabinet  is  confronted  at 
every  point  in  Parliamcnl  and  l)cf()re  the  country  by  a  "shadow 
cabinet  "  of  equal  numbers,  equally  organized  and  seeking  lo 
win  a  majority.  The  system  recjuircs  two  governing  parties, 
whose  joint  constituencies  inckuk'  practically  all  the  voters  of 

572 


I 


THE   LEGISLATURE  AND   POLITICAL  PARTIES         573 

the  nation.  The  French  plan  will  admit  of  nothing  of  the  sort. 
Its  legislature,  on  the  contrary,  exhibits  an  ordinary  minimum  of 
at  least  four  permanent  major  party  groups. 

The  Political  Parties.^  —  First,  there  are  citizens  who  have 
lost  some  privilege  in  government  which  they  have  greatly 
cherished.  Something  is  passing  or  has  passed  which  they 
deem  of  primary  inportance.  To  defend  what  is  threatened 
and  to  recover  the  lost  is  their  mission.  These  are  the  reaction- 
aries, or  the  extreme  conservatives,  —  the  party  of  the  Right. 
Second,  there  are  those  who  set  a  high  value  upon  the  dearly 
bought  experiences  of  the  past ;  they  would  not  lightly  sacrifice 
anything  of  value,  though  they  recognize  the  facts  of  progress, 
and  are  actuated  by  a  desire  to  harmonize  the  new  with  the  old. 
These  are  the  moderate  conservatives,  —  the  Right  Center. 
In  the  third  class  are  the  idealists  who  seek  to  gain  for  the 
state  blessings  never  yet  attained,  reformers  who  would  adven- 
ture into  new  fields  of  statesmanship.  They  would  not  wantonly 
destroy  the  present  order,  neither  would  they  permit  the  pres- 
ent order  to  block  the  way  to  the  attainment  of  greater  good. 
These  form  the  Left  Center.  The  Fourth  class  are  idealists 
who  find  in  the  present  order  of  society  an  obstruction  to  the 
new  order  which  they  would  substitute  in  its  place.  These  are 
the  Radicals,  Socialists,  and  Anarchists  of  the  Left.  The  his- 
tory of  the  Third  Republic  shows  the  shifting  of  power  from 
one  to  another  of  these  main  groups.     The  Party  of  the  Right 

—  Clericals  and  Royalists  —  held  a  dominant  place  until  1877. 
The  Right  Center,  —  Moderate  Republicans  and  Progressists, 

—  with  the  help  of  radicals,  was  then  in  control  until  1898. 
Since  1902  the  Radicals,  assisted  by  Socialists,  have  been  in  the 
ascendant.  The  movement  has  been  from  Right  to  Right 
Center  and  on  to  Left  Center.  Some  theorists  would  give  a 
permanent  place  to  a  fifth  party  group,  a  party  of  the  Center, 
whose  special  function  should  be  the  coordination  of  the  prevail- 
ing tendencies  in  the  State  in  times  of  emergency.  Of  such  a 
party  Waldeck  Rousseau  was  leader  during  the  period  of 
transition  from  Right  to  Left,  from  1898  to  1902. 

'  The  description  of  parties  in  France  given  here  follows  freely  the  work  of  M. 
Leon  Jacques,  "  Les  Partis  Politiques  sous  la  IIP'  Rcpubliquc,"  Paris,  1913.  For 
a  full  discussion  of  party  groups  and  their  component  parts  the  student  is  referred 
to  this  admirable  work. 


574  COMPARATIVE    FREE   GOVERNMENT 

The  aclual  condition  of  parties  in  France  is  by  no  means  so 
simple  as  this  description  would  indicate.^  In  each  of  the  four 
sections  there  are  subdivisions  with  distinguishing  names  and 
organizations.  Numerous  intermediary  organizations  tend  to 
obscure  the  lines  of  division  between  the  major  parties.  In 
the  legislative  hall  sit  men  who  were  elected  under  one  party 
designation  and  who  act  and  vote  under  another.  Some 
members  are  allied  with  more  than  one  party  group. 

It  should  be  remembered  that  in  each  of  the  ruling  parties  in 
England  there  appears  a  tendency  to  form  minor  organizations 
for  the  promotion  of  special  interests.  In  each  party  are  ex- 
tremists and  moderates.  Numerous  combinations  appear, 
looking  to  political  ends.  Yet  in  the  House  of  Commons 
practically  every  member  is  a  supporter  of  one  of  the  two  party 
leaders.  The  English  system  forces  all  organizations  into  at 
least  a  temporary  alliance  with  one  of  the  parties.  Within  the 
separate  parties  and  between  the  parties  there  is  continuous 
readjustment.  In  the  French  Chamber,  however,  this  kaleido- 
scopic rearrangement  take  places  within  the  Assembly.  In  an 
important  sense  the  English  Cabinet  is  master  of  the  Assembly, 
but  French  Ministers  hold  no  such  masterful  position. 

The  Organization  of  the  Chamber.  —  The  Chamber  of  Dep- 
uties organizes  itself  according  to  rules  which  prevailed  long  be- 
fore any  Cabinet  had  appeared.  It  appoints  a  bureau  of  si.xteen 
of  its  own  members  to  ha\-e  general  charge  of  its  business  and  to 
act  on  behalf  of  the  Chamber  during  recesses.  The  head  of  this 
Bureau  is  the  President  of  the  Chamber.  He  is  not  an  impartial 
presiding  ofiicer,  as  is  the  Speaker  of  the  House  of  Commons. 
Nor  does  he  control  the  House  as  a  party  leader,  after  the 
manner  of  the  Speaker  in  the  American  House  of  Representa- 
tives. The  President  of  the  Chamber  of  Deputies  is  an  ex- 
perienced political  leader;  he  takes  an  active  part  in  the  de- 
bates of  the  Assembly;  he  may  or  he  may  not  agree  with  the 
Cabinet ;  but  his  advice  is  sought  by  the  President  of  the 
Republic  in  the  selection  of  a  leader  to  form  a  new  ministry  at 
the  time  of  a  cabinet  crisis.     The  presiding  ofiicer  thus  exercises 

'  Lowell,  flcsrribinK  the  party  divisions  in  1876,  says,  "In  tlie  Ciiamljcr  of  Dep- 
uties were  the  Left  Center,  the  ke|)ul)lican  Left,  the  Kcpui)lican  Union,  the  Radical 
Left,  and  the  lixtreme  Left ;  and  each  of  these,  like  the  fractions  into  which  the 
RiRht  was  split,  was  orRanized  with  president,  secretary,  and  executive  committee 
of  its  own."  —  "  Governments  and  Parties  in  Continental  Europe,"  Vol.  I,  p.  78. 


THE  LEGISLATURE   AND    POLITICAL   PARTIES         575 

large  responsibilities  in  preserving  order  and  in  assisting  the 
Chamber  to  fuliill  its  mission.  Other  members  of  the  bureau 
of  sixteen  fill  the  offices  of  vice  presidents,  secretaries,  and 
auditors  for  the  Chamber. 

To  organize  for  the  transaction  of  business  the  six  hundred 
Deputies,  following  an  ancient  custom,  divide  themselves  by 
lot  into  eleven  sections,  or  bureaus,  as  nearly  equal  in  number 
as  possible.  This  division  takes  place  every  month.  These 
eleven  sections  assist  the  Assembly  in  determining  the  validity 
of  the  elections  of  its  members ;  they  discuss  briefly  the  bills 
presented  to  the  Chamber,  and  determine  the  attitude  of  the 
members  upon  these  bills  before  they  are  referred  to  a  committee. 
But  by  far  the  most  important  service  of  the  Bureaus  is  the  ap- 
pointment of  committees  to  consider  and  report  upon  the  bills 
brought  before  the  House.  The  separate  sections  first  give 
enough  attention  to  a  bill  to  determine  who  are  in  favor  of  and 
who  are  opposed  to  it ;  and  then  each  bureau  names  one  of  its 
members  to  serve  on  the  committee  to  examine  the  bill,  suggest 
amendments,  and  report  to  the  House.  The  plan,  as  will  be 
seen,  provides  for  a  special  committee  of  eleven  to  consider 
each  bill.  Measures  of  peculiar  importance  may  have  a  com- 
mittee of  two  from  each  Bureau,  or  even  three.  The  Budget 
and  the  auditing  of  accounts  go  into  the  hands  of  committees 
of  thirty-three  each,  appointed  for  a  year.  Committees  on 
the  Army,  on  Labor,  and  on  a  few  other  topics  calling  for  much 
legislation,  are  made  practically  continuous  in  service,  and  all 
bills  pertaining  to  those  subjects  are  referred  to  them. 

There  are  thus  two  sorts  of  bureaus :  the  permanent  Bureau 
of  sixteen  made  up  of  the  President  and  other  officers  of  the 
Chamber,  and  the  eleven  temporary  bureaus  into  which  the 
meml^ers  of  the  Chamber  divide  themselves  by  lot  each  month. 
There  are,  likewise,  two  varieties  of  committees  to  consider  and 
report  upon  bills.  Measures  pertaining  to  Finance,  Army  and 
Labor,  and  a  few  other  subjects  of  primary  importance  are 
referred  to  permanent  committees,  all  other  bills  are  referred  to 
special  committees  appointed  by  the  eleven  bureaus,  each  bureau 
naming  one  or  more  of  its  members  to  serve  on  the  committee.' 

At  the  opening  of  each  legislative  session  the  Prime  Minister 
presents  a  brief  outline  of  the  poHcy  of  the  Cabinet  and  the  pro- 

'  Lowell,  "Governments  and  Parties  in  Continental  Europe,"  Vol.  I,  p.  iii. 


576  COMPARATIVE   FREE   GOVERNMENT 

posed  legislation,  and  ministerial  bills  are  prepared  and  intro- 
duced. 

The  Cabinet  has  been  injected  into  an  Assembly  already  or- 
ganized to  perform  its  duties  without  executive  guidance.  How 
can  such  an  organ  secure  support  from  such  an  Assembly? 
This  is  accomplished  through  definite  modifications  in  the 
working  of  the  system.  The  leaders  of  the  stronger  party 
groups  agree  in  advance  upon  the  composition  of  certain  com- 
mittees of  special  political  importance.  The  fact  that  the  minis- 
ters are  privileged  speakers  in  both  Houses  of  the  Legislature 
enables  the  Cabinet  to  monopolize  the  time  and  dominate 
their  action.  There  is,  indeed,  constant  friction  between  the 
Cabinet  and  the  Committees,  and  it  is  evident  that  the  later 
system  is  not  yet  fully  harmonized  with  the  earlier  one. 

The  Cabinet  members  have  seats  in  a  central  position  in 
front  of  the  Presiding  Officer.  No  opposition  of  trained  critics 
confronts  the  Government,  as  in  the  House  of  Commons  in 
England.  Ministers  address  the  Chamber  from  the  Tribune, 
which  is  a  raised  platform  lower  than  the  seat  occupied  by  the 
President  and  placed  immediately  in  front  of  him.  From  the 
same  place  come  speeches  for  and  against  Cabinet  measures ; 
and  from  various  parts  of  the  chamber  spring  sallies  of  attack 
upon  or  defense  of  government  proposals. 

French  Ministers  are  accustomed  to  be  called  to  account  for 
their  policy  by  two  quite  distinct  processes.  First,  there  is 
the  ordinary  Question,  directed  to  the  Premier  or  to  any  one 
of  the  ministers.  The  Question  requires  notice  and  previous 
consent  of  the  minister  who  gives  the  answer;  and  only  the 
member  who  asks  the  (juestion  has  a  right  to  reply  to  the 
minister.  Second  is  the  Interpellation,  which  may  proceed 
fi\)m  any  member  of  tlie  House  and  may  j^erlain  to  any  part 
of  the  ministerial  policy.  The  Interpellation  is  a  formal  chal- 
lenge, and  the  Ministrj/  is  compelled  to  make  answer  within 
thirty  days,  a  day  being  fixed  for  the  reply.  The  Ministry 
adopt  a  form  of  words  explaining  their  attitude  on  the  policy 
called  in  ciuestion  by  the  Interpellation  and  then  move  to  pro- 
ceed with  the  regular  order  of  business.  Upon  this  motion 
there  ensues  a  general  debate  attacking  and  defending  the  policy 
of  the  Cabinet.  At  the  end  of  the  debate,  if  the  ministerial 
motion  receives  a  majority  vote,  the  government  is  sustained. 


THE  LEGISLATURE  AND   POLITICAL   PARTIES         577 

A  negative  vote  does  not  necessarily  cause  a  cabinet  crisis, 
since  the  interpellation  may  pertain  to  a  trivial  matter  which 
the  government  decides  to  ignore ;  yet  such  a  vote  always 
weakens  the  Cabinet  and  usually  is  followed  by  resignation. 
About  half  the  French  cabinet  crises  are  produced  by  an  ad- 
verse vote  following  an  interpellation. 

The  Senate.  —  The  organization  and  working  of  the  Senate 
is  similar  to  that  of  the  Chamber.  It  elects  a  President  and  a 
body  of  officers  to  manage  the  business  of  the  House.  It  divides 
into  nine,  instead  of  eleven,  bureaus  ;  the  committees,  there- 
fore, number  nine  or  a  multiple  of  nine ;  that  on  the  Budget 
consists  of  eighteen  members.  The  salary  of  the  members  is 
the  same  as  that  of  the  Deputies.  While  the  election^  is  by  an 
indirect  process,  still,  all  the  persons  of  the  various  classes  quali- 
fied to  vote  for  Senators  in  the  Departments  are  themselves 
chosen  by  the  voters  who  elect  members  of  the  Chamber  of 
Deputies.     Politics  enters  into  the  choice  of  Senators. 

All  the  great  parties  have  members  in  the  Senate,  but  some  of 
the  minor  ones  are  not  represented.  Party  changes  are  less 
rapid  than  in  the  Chamber,  yet  the  permanent  tendencies  are 
reflected  in  the  Senate  as  in  the  Lower  House.  The  fact  that 
all  the  Ministers  are  privileged  speakers  in  each  of  the  two 
Houses  tends  to  secure  harmony  of  action  and  to  avoid  pro- 
longed conflicts.  There  are  frequent  disputes  over  the  power 
of  the  Senate  to  amend  or  change  bills  for  raising  revenue,  but 
thus  far  serious  conflict  has  been  avoided.  Government  bills 
strongly  supported  in  the  Chamber  can  usually  be  got  through 
the  Senate. 

The  French  Senate  is  vastly  more  influential  and  important 
than  is  the  House  of  Lords  in  England  ;  -  on  the  other  hand  it  is 
correspondingly  inferior  in  power  to  the  Senate  of  the  United 
States.  The  French  Senate  has  one  peculiar  judicial  function. 
Like  the  United  States  Senate,  it  serves  as  a  court  for  the  trial 
of  impeachments,  and  in  addition  to  this  it  may  be  transformed 
into  a  high  court  for  the  trial  and  punishment  of  any  one  who 
is  accounted  dangerous  to  the  Republic.  In  1889  Boulanger, 
who  had  for  several  years  been  a  disturbing  element  in  politics, 

'  See  above,  p.  556  cl  srq. 

^  Lowell,  "  Governments  and  Parties  in  Continental  Europe,"  Vol.  I,  pp.  21-26; 
Bodley,  "  France,"  Vol.  I,   pp.  46  B.,  London,  i8g8. 

2P 


578  COMPARATIVE   FREE  GOVERNMENT 

was  summoned  to  appear  before  the  Senate  for  trial.  Instead 
of  appearing  he  chose  to  become  an  exile. 

Party  Organization.  —  To  understand  the  relation  of  the 
French  Cabinet  to  the  voting  constituencies  involves  a  knowl- 
edge of  the  party  organizations.  In  the  States  of  the  American 
Union  the  fact  that  one  usually  votes  a  certain  party  ticket 
entitles  him  to  legal  rights  as  a  member  of  that  party  and  to  a 
voice  in  the  selection  of  its  candidates.  On  the  Continent  of 
Europe  the  fundamental  assumption  as  to  what  constitutes 
membership  in  a  party  is  different.  The  habitual  voting  of  a 
party  ticket  does  not  make  one  a  member  of  a  party,  nor  does 
it  entitle  him  to  any  share  in  the  nomination  of  candidates. 
The  parties  are  composed  of  those  who  have  formally  joined  the 
organizations  and  who  pay  the  required  fees.  The  fees  are 
paid  annually,  monthly,  or  weekly,  and  may  be  high  or  low. 
Each  party  has  its  own  system,  but  all  party  membership  is 
conditioned  upon  paying  at  least  an  annual  fee.  In  some 
parties  there  are  two,  three,  or  even  four  grades  of  membership, 
according  to  the  amounts  paid  and  the  corresponding  privi- 
leges in  respect  to  control  of  the  organization.  Parties  of  the 
Right  in  the  Chamber  of  Deputies  exact  large  annual  fees; 
those  of  the  Left  small  ones.  The  highest  rank  in  one  of  the 
royalist  parties  requires  an  annual  payment  of  at  least  $ioo, 
while  a  socialist  may  attain  a  full  voting  privilege  in  his  party 
for  a  few  cents  per  month.  High  fees  with  various  ranks 
are  characteristic  of  the  Right;  fewer  ranks  and  lower  fees 
are  characteristic  of  the  Center;  and  the  extreme  Left  has  but 
one  rank  and  a  low  uniform  system  of  contril)ution.' 

The  organization  of  parties  is  of  recent  dale  in  France.  Not 
until  after  the  Boulanger  disturbances,  which  terminated  in 
i88q,  were  there  any  systematic  national  organizations  with 
central  offices  in  Paris.  Since  that  date  tlie  leading  parties  ha\e 
all  attained  central  organizations  with  subdixisions  in  the  I)c- 
I)artments,  establishing  a  regular  means  of  communication  with 
the  local  clubs  and  associations  in  the  communes.  The  central 
ofTice  in  I'aris  is  a  clearing  house  for  gathering  from  and  dis- 
tributing party  information  to  all  [jarts  of  the  country.  Parly 
biillctins  are  regularly  issued  by  ihc  stronger  orgain'zations  and 

'  .SlalcmciUs  rcspcclinK  local  orKaiiization  of  parties  arc  l)asf<l  iiiioii  information 
flerivcd  fnjm  party  ofTiciais  in  1913. 


THE  LEGISLATURE   AND   POLITICAL   PARTIES         579 

the  party  newspapers  fill  a  place  of  influence  which  is  without 
parallel  either  in  England  or  America.  Through  these  numerous 
organizations  and  the  complicated  system  of  finance  which  each 
involves,  large  numbers  of  French  citizens  are  rapidly  acquiring 
needed  experience  in  the  ability  to  initiate  and  to  execute  a  posi- 
tive program. 

The  Revolution  of  1789  found  the  people  void  of  organizing 
ability.  They  could  combine  to  destroy,  but  the  masses  were 
helpless  to  create  a  new  order.  Socialists  began  at  once  to 
combine  to  proclaim  new  gospel,  but  it  required  almost  a 
hundred  years  for  them  to  create  an  effective  organization. 
Poverty  of  organizing  ability  among  the  revolutionists  has 
inured  greatly  to  the  advantage  of  the  ecclesiastical  orders 
with  their  superb  system.  Poverty  of  organizing  ability  has 
also  undoubtedly  been  an  influential  factor  in  inducing  the 
Freemasons  of  France,  as  a  society,  to  enter  politics  as  a 
counterpoise  to  the  Roman  Church.  To  the  same  cause  may 
be  attributed  the  failure  of  labor  unions  in  France.  Unable  to 
form  and  execute  positive  programs  of  amelioration,  the 
wage  earners  become  victims  of  policies  of  destruction,  "  sabo- 
tage," "  syndicalism,"  or  revolution.  Socialists,  on  account 
of  their  superior  organization,  are  winning  the  laboring  classes 
to  the  support  of  more  moderate  and  conservative  policies. 
They  go  farther  than  any  other  party  in  extending  their  member- 
ship to  include  all  who  habitually  vote  for  their  candidates. 

All  the  parties  seek  to  increase  their  membership.  To  this 
end  there  is  a  tendency  toward  reduced  fees,  some  of  the  or- 
ganizations even  permitting  local  clubs  to  join  the  party  by 
simply  paying  a  single  membership  fee.  The  ideal  will  be  ful- 
filled when  aU  who  habitually  vote  for  the  candidates  become 
paying  members  of  the  party.  American  voters  enjoy  full 
party  membership  without  financial  sacrifice.  The  French  who 
become  members  of  a  party  are  trained  to  expect  an  assured 
demand  upon  their  incomes  to  promote  the  objects  of  their 
party. 

Improved  organization  is  naturally  followed  by  more  insistent 
demands  upon  pubhc  officers.  Beginning  about  the  year  1910, 
the  better  organized  parties  required  that  members  of  the 
legislature  whom  they  elect  shall  hold  together  and  vote  as 
a   body.      The   new  rules   establish   closer   relations   between 


580  COMPARATIVE   FREE   GOVERNMENT 

the  members  and  the  party  councils.  This  latest  development 
corresponds  to  the  rise  of  the  Caucus  in  England,  when,  under 
the  leadership  of  Chamberlain  and  Churchill,  the  party  councils 
undertook  to  dictate  policies  to  the  Cabinet.^  It  was  then  seen 
that  since  the  Enghsh  Cabinet,  from  its  essential  nature,  was  it- 
self the  supreme  party  council,  it  could  not  submit  to  dictation 
from  an  outside  organization. 

In  France  the  case  is  different;  the  Cabinet  is  not  a  party 
organ.  Greater  simplicity  and  efficiency  are  likely  to  result 
from  a  closer  association  between  pubHc  officers  and  the  party 
councils.  The  parties  and  the  public  press  with  which  they  are 
identified  are  become  the  great  organs  of  pubHc  opinion.  They 
enable  the  lawmakers  to  feel  their  way.  The  French  Cabinet 
cannot,  as  does  the  Enghsh,  keep  in  touch  with  the  voters 
through  Whips  and  paid  agents.  Nothing  of  the  sort  exists 
in  France.  There  is  need,  therefore,  of  some  reliable  source  of 
guidance ;  and  the  stronger  parties  are  assuming  this  role. 
Recent  developments  are  likely  to  diminish  the  number  of  party 
names  by  drawing  into  a  few  great  organizations  the  allied 
groups.  Nothing,  however,  has  thus  far  occurred  to  lead  to  the 
cxj)ectation  that  parlies  on  the  Continent  will  finally  be  reduced 
to  two  and  thus  make  way  for  the  English  cabinet  system. 
Belgium  has  been  quoted  as  a  Continental  state  exemplifying 
the  English  system.  But  one  of  the  so-called  Belgian  parties 
is  the  Roman  Catholic  Church,  and  the  other  is  composed  of 
numerous  groups  opj)osed  to  the  Church.  This  has  no  real 
resemblance  to  the  English  system,  but  means  a  prolonged  duel 
between  the  Church  and  its  opponents. ^ 

The  French  cabinet  system  is  in  the  formative  stage.  It 
has  not  yet  had  a  fair  trial.  Its  very  existence  is  still  seriously 
threatened.  Royalists  and  Bonapartists  would  restore  a 
monarchy  with  independent  executive  powers.  The  Church 
still  maintains  a  pro|)aganda  against  the  Revolution.  These 
are  all  discordant  elements.  What  form  the  government  will 
assume  when  all  classes  shall  have  accepted  the  existing  Constitu- 
tion is  for  the  future  to  determine.  The  probabilities  are  in 
favor  of  a  continued  parliamentary  system,  but  one  with  a 
Cabinet  which  is  decidedly  un-English  in  its  relation  to  party 

'  Sec  alxjvc,  Chap.  XL. 

'"  Scignobos,  "  A  Political  History  of  Conlemixjrary  luiropc,"  Vol.  I,  i)p.  2.jf>-2So. 


THE   LEGISLATURE   AND   POLITICAL   PARTIES         58 1 

organizations.  England  is  as  likely  to  adopt  the  multiple  party 
system  of  the  Continent  as  continental  states  are  to  adopt  two- 
party  government  of  the  English  type. 

REFERENCES 

(See  references  for  Chaps.  XLVI  and  XL VII.) 

BoDLEY.     France  (1900),  Vol.  II. 

Jacques.     Les  Partis  PoUtiqitcs  Sous  la  IIP  Republique,  Livres  I,  II. 

Marriott,  J.  A.  R.     Second  Chambers,  Oxford,  1910,  Chap.  X. 

PoNDiA  and  Pierre.     Traile  pratique  de  droit  parliamentaire,  Eight  vols. 


k 


CHAPTER   XLIX 

The  ROM.A.N  Legal  System  and  Modern  Government 

The  preceding  chapters  have  discussed  the  State  of  France 
as  having  a  typical  Continental  Government  differing  in  many 
ways  from  the  Anglo-Saxon  democracies.  This  radical  dis- 
tinction in  the  forms  of  government  and  in  the  types  of  law  which 
separates  Anglo-Saxon  countries  from  all  others  can  in  a  measure 
be  accounted  for  by  a  consideration  of  the  way  Roman  law  and 
government  have  affected  England.  The  present  chapter  is 
devoted  to  a  sketch  of  legal  development  in  England  and  the 
United  States  and  on  the  Continent  of  Europe.  Necessarily 
brief,  it  merely  suggests  some  of  the  fundamental  influences 
which  account  for  radical  differences  in  the  distribution  of  the 
powers  in  the  governments. 

The  Romans  have  given  to  the  world  a  system  of  law  fitted 
to  become  universal.  The  English  system  of  Common  Law  is 
best  understood  as  a  recent  and  peculiar  modification  of  the 
Roman  system.  The  men  who  first  organized  government  in 
England  were  versed  in  the  Roman  system.  It  was  only  late 
in  the  thirteenth  century  after  separate  high  courts  had  been 
set  up  that  the  peculiar  English  differentiation  arose.  Common 
Law  has  a  history  of  less  than  seven  hundred  years.  Roman 
Law  has  a  continuous  history  of  some  three  thousand  years. 
The  Roman  system  prevails  in  nearly  all  civilized  countries 
outside  of  the  British  Empire.  The  peculiar  Common  Law 
modification  is  for  the  most  part  confined  to  England  and  coun- 
tries colonized  by  Englishmen.  English  law  has  been  extended 
to  Wales  and  Ireland,  while  Scotland  retains  the  Roman  system, 
as  do  (Quebec,  South  ,'\frica,  and  the  State  of  Louisiana.  What 
will  be  the  ultimate  system  in  Lidia  and  other  liritish  i)osses- 
sions  is  for  the  future  to  determine.  The  Common  Law  system 
is,  then,  a  special  Anglo-Saxon  institution,  though  it  emlxxlies 
certain  principles  of  liberty  which  entitle  it  to  recognition  in 
all  free  states. 

582 


ROMAN   LAW   AND   MODERN   GOVERNMENT  583 

Early  Roman  Law.  —  Roman  Law,  like  English  law,  originated 
in  a  struggle  for  liberty.  Before  the  Laws  of  the  Twelve  Tables 
were  enacted  centuries  of  progress  had  been  leading  towards  an 
enlarged  citizenship.  The  Plebeians  had  already  obtained  many 
civil  rights.  The  Patricians  held  the  chief  offices  when  the 
Plebeians,  having  superior  force,  made  an  effective  demand  that 
the  laws  should  be  codified  and  published,  so  that  all  might  be 
equally  informed  as  to  their  rights.  The  result  was  that  after  the 
first  great  Roman  Code  of  451  B.C.,  all  distinctions  between 
Patricians  and  Plebeians  gradually  disappeared.  Roman  citizen- 
ship was  afterwards  extended  to  the  poorer  unorganized  classes. 
Strangers  living  in  Rome  secured  at  the  hands  of  Roman  magis- 
trates the  administration  of  the  laws  which  they  had  been  accus- 
tomed to  enjoy  in  their  own  countries.  As  the  Romans  annexed 
new  territory  the  local  territorial  laws  were  still  administered. 
Magistrates  thus  became  expert  in  the  administration  of  a  great 
variety  of  laws  and  in  the  selection  and  extension  of  those  rules 
of  conduct  which  were  found  to  be  most  beneficial.  Selected 
Roman  Law  became  the  common  law  for  a  great  variety  of 
tribes  and  peoples  in  a  growing  empire.  The  extension  of  the 
Empire  carried  with  it  the  benefits  of  an  improved  legal  system. 
At  first  no  distinction  was  made  between  private  and  public  law. 
"  Private  law  furnishes  the  foundation  upon  which  public  law 
rests."  ^  Plebeians  and  the  proletariat  contended  for  political 
as  well  as  for  property  rights.  During  the  later  centuries  the 
Roman  rulers  became  obsessed  with  the  idea  of  world  conquest 
and  great  changes  ensued  in  the  organization  of  the  government. 
"  The  young  Empire  which  arose  over  the  ruins  of  Carthage 
bore  the  seeds  of  its  own  destruction  within  it."  The  masses 
became  subject  to  the  rich.  "  While  Rome's  serfs  were  growing 
into  freemen,  her  power  was  steadily  in  the  ascendant ;  when  the 
masses  of  her  small  freemen  lapsed  into  serfdom,  her  power  was 
doomed.  Christianity  came  to  proclaim  the  gospel  to  the 
masses,  but  it  arrived  too  late  to  effect  any  decisive  reform  in 
the  existing  economic  conditions." - 

Early  Roman  statutes  were  enacted  by  large  assemblies  of 
citizens  in  which  was  no  opportunity  for  discussion  or  debate. 
The  Roman  Senate  was  quite  as  much  an  executive  as  a  legisla- 

1  Sohm's  "Institutes  of  Roman  Law,"  p.  36,  Third  Edition.  Tr.  by  Ledlie, 
0.\ford,  igo7.        'Sohm's  "  Institutes  of  Roman  Law,"  pp.  44-45.     Tr.  by  Ledlie. 


k 


584  COMPARATWE  FREE   GOVERNMENT 

live  body.  The  Twelve  Tables  were  prepared  by  a  commission 
appointed  for  the  purpose  and  were  enacted  by  vote  of  the 
comitia  ccnturiata.  Roman  law  was  largely  developed  from 
discoveries  made  by  administrative  officers.  When  a  praetor 
was  set  to  rule  over  a  district  he  administered  the  laws  and  cus- 
toms which  he  found  among  the  people.  He  issued  general 
orders  of  instruction  to  the  judges  and  these  orders  when  sanc- 
tioned by  the  general  government  became  laws.  His  doubts 
were  solved  by  seeking  instruction  from  higher  oflScers.  This 
policy  produced  a  class  of  experienced  students  of  law. 
The  Commentaries  of  the  Jurists  and  expert  students  were 
often  enacted  into  law.  Through  various  agencies  private 
law  was  perfected  by  the  elimination  of  differences  and  by  a 
selection  of  such  rules  of  conduct  as,  based  upon  experience, 
were  found  most  helpful  in  securing  domestic  harmony.  Numer- 
ous codes  were  prejjared  for  the  guidance  of  public  officials 
and  for  the  instruction  of  the  people.  For  more  than  a  thousand 
years  the  legal  codes  were,  in  theory,  based  upon  the  laws  of 
the  Twelve  Tables.  When  the  Emperor  Justinian  (527-565 
A.D.),  with  the  help  of  eminent  jurists,  made  a  complete  codi- 
fication of  the  entire  system  of  ancient  Roman  law,  the  Justinian 
legislation  furnished  a  new  starting  point  for  the  develojMTient 
of  the  Roman  system. 

Later,  or  Private,  Roman  Law.  —  It  is  to  be  observed  lliat  the 
later  Roman  Codes  embody  only  a  part  of  the  law  develoi)ed 
by  the  early  Republic.  They  contain  no  bill  of  rights,  no  recog- 
nition of  the  right  of  subjects  to  a  share  in  the  government.  Only 
such  laws  are  found  as  may  be  administered  by  a  corrupt  and 
tyrannical  government.  Caracalla  (212-217  .\.d.),  who  made 
all  free  subjects  of  the  Empire  Roman  citizens,  was  noted 
for  corruption  and  tyranny.  Citizenshij)  harl  long  ceased  to 
imply  any  important  political  rights. 

When  Rome  became  a  conc|uering  empire,  military  chiefs 
found  it  to  their  advantage  to  extend  and  perfect  only  that 
[)art  of  the  law  of  the  Republic  which  pertained  to  private  and 
personal  rights.  Hence,  during  the  centuries  of  conquest  the 
laws  governing  the  ownershij)  and  transfer  of  j^roperty,  family  re- 
lations, and  the  [)unishment  of  crime,  became  dissociated  from 
any  idea  of  a  share  in  the  government.  In  tlie  realm  of  i)rivate 
law,  Roman  conquest  carried  with  it  the  great  boon  of  justice 


ROMAN   LAW  AND   MODERN   GOVERNMENT  585 

and  equity  to  the  subject  peoples.  By  the  separation  of  private 
from  pubHc  law  corruption  and  tyranny  in  the  government  were 
enabled  to  coexist  with  progress  in  the  development  of  a  system 
of  private  justice.  It  is  a  remarkable  fact  that  Roman  private  law 
was  perfected  during  a  period  of  degeneracy  in  the  government. 
Bryce  designates  the  four  hundred  and  fifty  years  from  the  end 
of  the  First  Punic  War  (241  B.C.)  as  the  time  occupied  in  the 
completion  of  the  Roman  system.^  The  result  is  thus  described 
by  Sohm :  "  Towards  the  commencement  of  the  third  century 
(in  the  reign  of  Caracalla) ,  the  Roman  franchise  was  extended  to 
the  great  bulk  of  the  subjects  of  the  Empire.  ...  To  be  a 
citizen  of  Rome  was  now  to  be  a  citizen  of  a  world-wide  Empire. 
The  Roman  Civil  law  —  at  one  time  a  narrow  kind  of  private 
law,  circumscribed  and  limited  by  national  idiosyncrasies  — 
expanded  into  a  private  law  for  the  citizen  of  the  orbis  terranim, 
a  law  for  the  private  person  as  such,  a  law,  in  other  words,  in 
which  the  essential  and  indestructible  elements  of  the  private 
personality  found  expression.  And  at  the  same  time  the  rules 
regulating  the  ordinary  dealings  between  man  and  man  widened 
into  a  system  in  which  the  essential  character  of  such  dealings 
was  brought  out,  a  system  not  restricted  to  the  dealings  of  any 
particular  age,  but  applicable  in  all  ages  alike.  Herein  lay 
the  secret  of  the  imperishable  strength  of  Roman  private  law."  - 

A  corrupt  and  decaying  government  thus  perfected  a  system 
of  justice  received  from  an  earlier  free  and  progressive  Repub- 
lic. The  government  perished,  but  the  system  of  law  did  not 
perish.  Barbarian  conquerors  were  induced  to  accept  this  gift 
from  the  past  and  transmit  it  to  modern  free  states. 

English,  or  Common,  Law.  —  The  early  development  of  Eng- 
lish law  was  not  unlike  that  of  Roman  law.  In  each  case  the 
people  were  contending  for  their  rights,  personal  and  political. 
Neither  in  Magna  Charta  nor  in  the  Twelve  Tables  of  Roman  law 
is  there  any  suggestion  of  a  separation  of  private  from  public 
law.  In  England  the  contest  continued  along  the  original 
lines  of  a  struggle  for  both  private  and  public  rights.  While 
Roman  emperors  had  restricted  the  magistrates  to  the  adminis- 
tration of  private  law,  English  kings  followed  a  different  course, 
creating  new  courts  by  means  of  which  they  restrained  the  power 

'  Br>'ce,  "  Studies  in  History  and  Jurisprudence,"  p.  114.     Essay  II,  §  VIII, 
^  "  Institutes  of  Roman  Law,"  p.  46. 


586  COMPARATIVE  FREE   GOVERNMENT 

of  feudal  lords.  The  people  were  taughl  to  look  to  the  king's 
courts  for  the  defense  of  political  as  well  as  private  rights. 
Public  officers  were  held  amenable  to  the  ordinary  courts  and 
nobility  and  clergy  were  made  subject  to  the  law.  In  course 
of  time  kings  also  were  deprived  of  arbitrary  power  and  were 
rendered  submissive  to  Parliament. 

By  a  gradual  and  imperceptible  process  the  Roman  people 
had  lost  all  share  in  their  government,  while  at  the  same  time 
Roman  rulers  were  perfecting  a  system  of  private  law.  Gradu- 
ally, also,  in  course  of  centuries,  the  English  people  have  gained 
recognition  as  themselves  the  source  of  all  political  power  and 
authority.  The  pjiglish  kings  did  not  intend  to  build  up  a 
democracy.  They  labored  to  increase  and  perpetuate  their  own 
power,  as  did  the  Roman  emperors.  But  the  barbarian  con- 
quests and  the  resulting  feudal  system  had  created  a  break  in 
the  continuity  of  Roman  administration.  Private  and  public 
law  were  again  fused  together,  and  local  conditions  favored  the 
development  of  political  rights. 

Space  does  not  permit  of  detailed  description  of  the  sharply 
contrasted  systems  of  English  and  Roman  law.  Only  a  brief 
notice  of  three  characteristics  which  explain  the  peculiar  English 
distribution  of  the  high  powers  of  state  will  be  given. 

In  the  first  place,  as  already  noted,  English  courts  administer 
both  public  and  private  law,  and  the  judiciary  is  thus  enlarged 
at  the  expense  of  the  executive.  Administrative  officers  are 
held  accountable  before  the  ordinary  courts  for  any  alleged 
illegal  acts. 

A  second,  more  rarlical,  difference  is  found  in  the  fact  that  a 
considerable  part  of  I-Jiglish  law  is  derived  from  the  judiciary.' 
As  the  king's  justices  i)assed  from  shire  lo  shire  securing  to  the 
peoi)le  their  local  rights  and  customs,  the  rulings  of  the  courts 
transmuted  custom  into  law.  This  was  undoubtedly  a  potent 
agency  in  strengthening  the  ])osition  of  the  Crown,  which  also 
gainefl  in  prestige  as  the  High  Court  of  Ajipeal.  The  rulings  of 
the  courts  became  important  soinxcs  of  both  piiblir  and  private 
law. 

The  spirit  ol"  the  Koinan  Law  is  radicallx'  dilTcrent.  It  is 
the  business  of  (he  Roman  Law  court  to  ajjply  the  rules  of  law 
to  cases  of  disi)uled    right,   not    to  determine   what   the   rules 

'  Aljovf,  p.  40O. 


ROMAN   LAW  AND   MODERN    GOVERNMENT  587 

are.  If  there  are  uncertainties  as  to  the  rules,  light  is 
sought  from  administrative  officers  or  from  the  legislature. 
It  is  the  aim  of  Roman  Law  to  inform  litigants  in  advance  as 
to  what  are  the  rules  of  law ;  to  make  the  statement  of  the  rules 
so  clear  and  distinct  that  to  understand  them  calls  for  no  unusual 
technical  knowledge.  Chance  decisions  of  cases  in  litigation 
are  not  permitted  to  obscure  the  rules  of  law,  and  judges  are 
warned  against  the  evil  tendency  to  follow  precedent  in  their 
decisions.  They  are  admonished  to  do  justice  in  each  case 
regardless  of  former  decisions.  If  new  light  is  required,  it  is  not 
sought  among  the  utterances  of  magistrates  in  deciding  previous 
cases.  The  Roman  system  thus  restricts  the  ordinary  judiciary, 
first,  by  confining  it  to  the  field  of  private  law,  and,  second,  by 
preventing  the  courts  from  becoming  a  source  of  law. 

The  third  difference  lies  in  the  exaltation  of  the  legislature  as  a 
lawmaking  body.  The  process  of  lawmaking  in  England  at 
first  did  not  greatly  differ  in  form  from  the  Roman  method. 
Magna  Charta,  like  the  Twelve  Tables,  was  a  brief  summary  of 
private  and  political  rights.  The  Petition  of  Right  exacted 
from  Charles  I  (1625-1649)  was  also  a  brief  summary  of  rights. 
Neither  Charles  nor  John  had  any  intention  of  obeying  the 
laws  which  were  exacted  from  them  by  force.  It  was  the  diffi- 
culty of  securing  royal  obedience  which  led  Parliament  to  in- 
troduce into  the  statutes  minute  details  and  then  to  secure 
their  administration  through  a  Cabinet  controlled  by  the  legis- 
lature. The  king,  as  chief  executive,  was  thus  restricted  in  his 
power  to  interpret  and  apply  the  acts  of  Parliament.  This 
enlargement  of  the  functions  of  the  distinctive  legislative 
assemblies  is,  therefore,  a  very  recent  innovation  in  the  Roman 
system,  and  is  strictly  limited  to  Anglo-Saxon  countries.  In 
other  modern  free  states  the  Roman  method  of  general  lawmak- 
ing prevails. 

Each  of  the  three  English  modifications  of  the  Roman  s)-stem 
deprived  the  administrative  department  of  a  portion  of  its 
power.  First,  by  administering  without  discrimination  both 
public  and  private  law,  the.  courts  rendered  executive  officers 
accountable  to  the  judiciary.  Second,  English  judges  performed 
functions  that  in  Rome  had  fallen  to  administrative  officers. 
They  both  expounded  and  applied  the  law,  and  enlarged  and 
adapted  it  to  changing  conditions.     Third,  Parliament  was  led 


588  COMPARATTVE    FREE   GOVERNMENT 

by  fear  and  distrust  of  the  king  to  introduce  minute  details 
into  its  statutes,  thus  depriving  the  executive  of  the  right  to 
expound  and  apply  the  laws. 

Constitutions  and  Law  in  the  United  States.  —  A  more  radical 
departure  from  the  ancient  system  is  found  in  the  United  States. 
Roman  public  law  was  in  the  beginning  evolved  from  preexisting 
customary  or  private  law.  In  the  United  States  the  process 
is  reversed,  public  law  is  made  fundamental.  There  is  no  law, 
there  are  no  legal  rights,  either  private  or  political,  except  such 
as  are  authorized  by  the  Constitutions.  The  American  system 
is  the  exact  opposite  of  the  Roman  system.  It  begins  with 
public  law ;  private  rights  are  made  dependent  on  public  law. 
Romans  made  sure  of  private  rights,  leaving  public  law  in  the 
hands  of  tyrants.  Neither  system  will  be  complete  without 
the  other.  Many  centuries  were  required  to  perfect  the  Roman 
scheme.  Americans  have  entered  upon  the  more  difficult  task  of 
perfecting  and  harmonizing  both  public  and  j)rivate  law.  Thus 
far  time  for  only  a  crude  and  imperfect  beginning  has  elapsed. 

Bagehot  has  called  attention  to  the  fact  that,  at  a  certain 
stage  in  the  evolution  of  the  race,  quantity  of  government  is  of 
greater  importance  than  quality.  It  seems  America's  high 
mission  to  fulfill  vicariously  this  quantitative  service  for  the 
world  in  its  transition  from  despotism  to  democracy.  In  the 
earlier  history  of  the  American  States  there  was  little  real  de- 
mand for  government  of  any  sort,  but  as  a  rule  each  State  was 
supplied  with  two  separate  legislative  chambers  supplemented 
in  some  cases  by  an  executive  council.  Tiie  English  practice 
of  minute  statutory  legislation  was  adopted.  States  and  Nation 
were  each  supplied  with  distinct  sets  of  independent  govern- 
mental machinery.  N(H  only  so,  but  towns  and  cities  were 
likewise,  for  a  time,  pro\'ided  with  governments  after  the  same 
model.  Comparatively  small  cities  were  organized  wilh  city 
legislatures  having  two  houses,  and  with  independent  executives 
and  judiciaries.  This  governmental  machinery  was  again 
duplicated  by  local,  state,  and  national  party  organizations, 
through  whose  agency  poi)ular  election  was  svibstituted  for  the 
constitutional  method  of  choosing  the  President  of  the  Republic. 
In  many  ways  the  parties  assumed  and  exercised  goxernmeiilal 
functions.  Numerous  corporations  have  also  been  called  into 
existence     which     apjjropriatcd     go\ernmental     powers.     Tlie 


i 


ROMAN   LAW  AND   MODERN   GOVERNMENT  589 

American  system,  moreover,  forces  the  judiciary  into  the  thick 
of  the  fight  in  partisan  or  contentious  politics.  Thus  the 
entire  government  in  its  manifold  forms  has  been  engaged  in 
the  gathering  of  experience  for  the  future  democracy.  From 
the  standpoint  of  mere  quantity  nothing  more  could  be  desired. 
The  one  purpose  of  finally  making  sure  of  popular  control  of 
the  government  as  a  means  of  securing  all  rights,  has  constantly 
become  more  determined  and  more  clearly  defined. 

The  Americans  adopted  the  three  English  innovations  upon 
the  Roman  system  and  added  thereto  a  notable  innovation  of 
their  own.  Not  only  did  they  make  the  executive  amenable  to 
the  ordinary  courts,  but  they  gave  to  the  courts  the  power  to 
nullify  acts  of  the  legislature.  The  judges  are  the  final  interpret- 
ers of  the  Constitutions.  If  in  their  judgment  a  legislative  act 
violates  the  Constitution,  they  declare  the  act  void  in  case  its 
constitutionality  is  questioned.  This  feature  has  led  to  the 
development  of  an  extensive  body  of  Constitutional  law  de- 
rived from  judicial  decisions.  In  no  other  country  are  the 
political  powers  so  adjusted  as  to  render  possible  the  develop- 
ment of  such  a  body  of  public  law. 

The  French  Legal  System.  —  The  United  States  is  not  alone 
in  the  attempt  to  create  a  legal  system  designed  to  enable  the 
people  to  govern  themselves.  France  also  entered  upon  the  task 
the  very  year  that  the  American  Constitution  went  into  effect. 
A  brief  comparison  of  the  two  results  is  given  in  a  previous 
chapter.  A  few  points  are  recalled  here  because  of  their  relation 
to  the  contrasted  method  of  English  and  Roman  government. 

France  is  becoming  democratic  with  a  minimum  of  departure 
from  the  Roman  system.  In  the  southern  provinces  the  influence 
of  Roman  law  survived  throughout  the  feudal  period  and  gained 
new  life  as  feudal  power  diminished.  One  of  the  first  demands  of 
the  Revolution  was  the  restoration  of  Roman  Law  and  the  re- 
sponse is  found  in  the  Civil  Code  and  four  minor  codes  issued  by 
Napoleon  during  the  years  from  1804  to  1810.  This  Napoleonic 
legislation  is  a  modern  summary  of  Roman  Law  comparable  to 
the  Justinian  legislation  of  the  sixth  century.  At  the  same  time 
a  series  of  courts  was  organized  to  administer  these  codes. 
The  organization  is  thoroughly  Roman  in  form. 

An  Act  of  1790  forbade  the  judges  to  entertain  any  charge 
against  a  public  officer.     The  French  place  confidence  in  their 


590  COMPARATIXE   FREE   GOVERNMENT 

administrative  officers  and  protect  them  from  any  interference 
on  the  part  of  the  judges.  Under  the  Third  Republic  special 
administrative  tribunals  have  been  established  to  hear  com- 
plaints against  public  officers  and  to  assist  in  the  administration 
of  public  law.  Referring  to  these  tribunals,  President  Poincare 
says :  "  Administration  and  justice  are  two  separate  domains. 
The  better  to  ensure  their  reciprocal  independence,  the  disputes 
arising  out  of  the  execution  of  the  commands  of  the  administra- 
tive authorities  are  not  submitted  to  the  judicial  authorities. 
A  Minister  or  a  prefect  issues  an  order.  If  this  order  is  illegal 
the  Government  may  be  interpellated  in  the  Chambers,  but  the 
civil  courts  will  not  have  the  right  to  annul  the  order.  It  is 
not  their  place  to  judge  the  executive  power  nor  its  officials. 
This  is  a  principle  which  was  solemnly  proclaimed  by  the 
Revolution."  ^  The  French  system  is  a  continuation  of  the 
Roman  system  in  that  it  exempts  the  executive  from  judicial 
interference,  but  the  Romans  did  not  provide  for  an  "  inter- 
pellation in  the  legislature,"  nor  did  they  set  up  tribunals  whose 
special  business  it  was  to  hear  complaints  against  the  executive. 
The  French  plan  implies  practically  two  sets  of  courts,  one  to 
administer  the  ordinary  law  and  the  other  to  decide  questions 
arising  out  of  the  rapidly  accumulating  administrative  law. 
It  becomes  impossible  always  sharply  to  distinguish  between 
private  and  public  law,  and  a  Tribunal  of  Conflicts  has  hence 
been  established  composed  of  judges  from  the  high  court  and 
from  the  highest  administrative  tribunal.  It  is  the  duty  of 
this  court  to  harmonize  the  administration  of  private  and  public 
law  and  to  decide  doubtful  cases  involving  both  jurisdictions. 

In  the  making  of  laws  the  P>ench  likewise  follow  the  Roman 
.system.  Statutes  are  couched  in  general  terms,  and  Ihe  executive 
is  required  to  amplify  llu-ni,  to  issue  ordinances  exi)]aining  their 
meaning,  and  to  modify  tlnni  to  meet  the  various  exigencies  of 
administration.  This  is  all  distinctly  Roman.  But  the  two 
houses  of  the  legislature  are  lOnglish  rather  than  Roman.  As 
French  democracy  becomes  more  self-conscious  and  insistent 
the  importance  of  debate  in  the  houses  becomes  more  apparent. 
It  should  be  borne  in  mind  that  both  the  English  and  the  French 
legislative  innovations  upon  the  Roman  method  are  of  com- 
paratively recent  origin.     In  luigiand  the  changes  arose  from  an 

*  Poincar^,  "  How  France  is  Governed,"  p.  270. 


ROMAN  LAW  AND  MODERN   GOVERNMENT  591 

unconscious  striving  after  a  more  tolerable  government;  in 
France  from  the  first  crude  attempts  at  a  revolution  whose 
purpose  was  only  partially  attained. 

The  French  revolutionists  proclaimed  the  doctrine  of  popular 
sovereignty,  but  their  method  of  realization  has  been  the  adapta- 
tion of  the  Roman  system  to  the  needs  of  the  democracy.  The 
United  States  substitutes  a  radically  different  plan.  Private 
law,  as  such,  is  abolished.  In  its  place  State  and  federal  con- 
stitutions are  made  a  guaranty  for  all  legal  rights.  Public 
officers  of  every  sort  are  engaged  in  the  elaboration  of  a  political 
scheme  which  will  in  the  end  secure  to  the  people  their  private 
rights.  But  many  of  these  private  rights  are  made  dependent 
upon  the  previous  satisfactory  adjustment  of  the  relation  of  the 
States  to  the  Union,  and  of  the  various  departments  of  govern- 
ment to  one  another  and  to  the  people. 

The  future  of  free  government  is  the  more  secure  because  the 
two  great  republics  of  the  world  illustrate  distinct  and  diverse 
methods  of  approach.  They  are  at  one  in  the  declaration  of 
the  principles  of  popular  sovereignty,  but  the  United  States 
repudiates  ancient  forms  and  lays  anew  the  foundations  of  the 
state  in  a  popularly  enacted  fundamental  law,  while  France 
adapts  the  ancient  forms  to  modern  needs. 

The  constitutions  enacted  in  all  countries  since  1789  have 
been  greatly  influenced  by  that  of  the  United  States,  many 
of  its  features  having  passed  into  other  constitutions.  French 
codes  of  law  have  also  influenced  subsequent  legislation  in  all 
parts  of  the  world.  Latin  republics  in  the  New  World  have 
copied  with  modifications  the  Constitution  of  the  United  States 
while  adopting  the  French  civil  code.  As  is  shown  in  later 
chapters,  a  marked  tendency  appears  among  them  to  follow 
French  models  in  the  final  organization  of  their  governments. 

REFERENCES 

An  Analysis  of  the  System  of  Government  Throughout  the  British  Empire,  pp. 

43-53-     Macmillan. 
Bryce.     Studies  in  History  and  Jurisprudence,  Essays  II,  XV. 
Bryce.     The  Holy  Roman  Empire. 
SoHM.     Institutes  of  Roman  Law,  Tr.  by  Ledlie,  Edition  1907,  Introduction 

by  Grueber,  and  Chaps.  I,  II ;  Part  II,  Chaps.  I-III. 
Wilson.     The  State,  Chap.  XIII. 


GERMANY 

CIL\PTER  L 

The  Origin  of  the  German  Empire 

Charlemagne  (768-814)  founded  a  great  empire  including  the 
greater  part  of  Italy,  the  whole  of  France,  and  much  of  the 
present  dominions  of  Germany  and  Austria.  In  the  year  800 
Charlemagne  received  at  the  hands  of  the  Pope  the  crown  of 
the  Ca'sars  and  thereby  became  the  head  of  the  Holy  Roman 
Empire.  The  old  Roman  Empire  had  become  Christian  in  325 
A.D.  ■  As  the  secular  power  of  the  Caesars  decreased  the  spiritual 
power  of  the  Popes  increased.  The  Church  bore  no  small  share 
in  binding  the  emjMre  together  under  its  spiritual  rule.  It  took 
over  a  considerable  part  of  the  government.  Roman  law  was 
already  a  perfected  system.  The  Church  appropriated  Roman 
law  and  adapted  it  to  its  own  needs.  Canon  law,  or  the  law  of 
the  Church,  became  an  important  part  of  modern  Roman  law. 
The  conquering  barbarians  were  rapidly  converted  to  Christian- 
ity. In  the  transition  from  heathenism  to  the  religion  of  Rome 
the  idea  of  a  world  emj)ire  wiih  just  laws  divinely  sanctioned 
took  definite  form.  Of  this  Empire  the  Pope  of  Rome  was  the 
spiritual  head,  and  the  dynasty  of  the  Caesars  the  temporal 
head.  It  was  to  be  a  holy  and  righteous  empire  which  was  to 
give  peace  and  order  to  the  entire  world. 

Origin  of  the  Holy  Roman  Empire.  —  The  temporal  office 
was  transferred  to  Constantinople,  but  the  spiritual  ofTice  re- 
mained in  Rome.  The  fiction  of  a  world  dominion  was  still 
maintained  even  after  the  entire  west  was  subjected  to  Teutonic 
conquerors.  The  popes  continued  to  acknowledge  the  Byzan- 
tine emperors  as  the  secular  heads  of  the  Holy  Empire.  After 
Justinian  (^527-565)  the  I'-asiern  Empire  rapidly  declined. 
When  Charlemagne  entered  tiie  city  of  Rome  with  a  conquering 
army,  in  800  a.d.,  there  was  a  vacancy  in  the  offRe  at  Con- 

5y2 


k 


THE   ORIGIN  OF  THE   GERMAN  EMPIRE  593 

stantinople,  and  the  symbol  of  the  secular  unity  of  Christendom 
was  transferred  from  Constantinople  to  Paris. 

The  idea  was  grand  and  inspiring.  A  just  system  of  private 
law  was  already  an  accomplished  fact.  If,  under  the  sanctions 
of  reUgion,  order  could  be  established  among  the  rulers  of  all 
nations,  the  predicted  millennium  would  have  been  fulfilled. 
Many  obstacles  stood  in  the  way  of  immediate  realization  of 
the  ideal.  Popes  and  secular  rulers  seldom  agreed  as  to  the 
respective  limits  of  their  powers ;  instead  of  harmony  there  was 
perpetual  conflict.  The  Empire  of  Charlemagne  terminated 
at  the  death  of  his  son  in  843  by  a  division  into  three  parts. 
France  and  Germany  became  permanently  separated.  The 
Empire  was  at  no  time  coextensive  with  the  Roman  Church. 
After  the  division  independent  states  were  formed  in  France 
and  Italy  and  the  Holy  Roman  Empire  became  in  practice  a 
local  German  Empire,  though  it  retained  some  of  the  mythical 
symboHsm  of  the  unity  of  Christendom. 

The  ofBce  of  Kaiser,  or  Emperor,  was  at  no  time  clearly 
defined.  It  passed  partly  by  inheritance,  partly  by  the  choice  of 
the  imperial  diet,  sometimes  by  papal  influence  to  one  or  another 
of  the  rulers  of  German  States.  In  1438  the  oflfice  became  per- 
manently associated  with  the  house  of  Hapsburg,  the  rulers 
of  Austria.  It  was  contrary  to  the  theory  of  the  office  that  the 
Emperors  should  confine  their  authority  to  a  single  State  or 
part  of  Christendom,  but,  except  among  German  States,  they 
had  little  influence.  In  Germany  the  Emperors  could  not  form 
a  strong  centralized  government ;  they  had,  however,  influence 
enough  to  prevent  the  formation  of  strong  rival  governments. 
The  imperial  office  furnished  a  nucleus  for  a  loose  confederation 
of  petty  kings  and  princes. 

In  the  German  States  local  tribal  law  or  special  state  statutes 
took  the  place  of  the  ancient  law.  Frederick  Barbarossa 
(1152-1190)  and  other  imperial  officers  favored  the  introduction 
of  Roman  law.  Roman  jurisprudence  was  taught  in  the  univer- 
sities. Roman  law  was  continuously  administered  in  northern 
Italy  from  the  downfall  of  the  old  empire,  and  in  1495  it  was 
introduced  from  Italy  into  Germany.  The  local  laws  were 
not  entirely  displaced  and  the  two  systems  were  administered 
concurrently.  The  educated  classes  became  indoctrinated  with 
the  principles  of  Roman  justice. 


594  COMPARATIVE  FREE  GOVERNMENT 

During  the  century  following  the  introduction  of  Roman  law 
Germany  was  disrupted  by  the  religious  Reformation.  Part 
of  the  States  became  Protestant  while  the  others  remained 
Roman  CathoUc.  Germany  bore  the  brunt  of  the  religious  wars 
of  the  seventeenth  century  and  at  the  end  of  the  Thirty  Years' 
War  (1648)  much  of  the  country  had  become  depopulated. 
By  the  Treaty  of  Westphalia  (1648)  the  leading  nations  of 
Europe  recognized  both  Protestant  and  Catholic  states  and 
small  states  were  guaranteed  independence.  The  idea  of  in- 
ternational right  based  upon  agreement  between  numerous 
sovereign  states  displaced  the  older  idea  of  imperial  unity. 
The  Holy  Roman  Empire  thus  ceased  to  be  even  a  symbol  of 
the  unity  of  Christendom. 

Out  of  the  ruin  wrought  by  the  religious  wars  Prussia  arose  to 
a  position  of  eminence  in  the  north  and  became  a  counterpoise 
to  Austria  in  the  south.  Prussia  and  Austria  included  a  mixed 
population  of  Slavs  and  other  alien  races,  while  the  smaller 
western  States  were  more  distinctly  German.  Germany  thus  be- 
came divided ;  the  two  great  rival  States  having  mixed  popula- 
tions composing  one  part,  the  group  of  smaller  States  the  other. 

These  few  facts  furnish  a  basis  for  the  explanation  of  modern 
Germany.  It  was  undoubtedly  conducive  to  national  pride 
that  for  so  many  centuries  the  German  Kaisers  as  successors  to 
the  Roman  Caesars  typified  the  unity  of  Christendom.  In 
harmony  with  the  same  ideal  was  the  study  of  Roman  law  and 
its  introduction  as  a  part  of  the  law  of  the  land  in  1495.  The 
comparative  independence  of  numerous  states  led  to  the  or- 
ganization of  a  number  of  active  and  vigorous  universities. 
Within  the  dominions  of  the  Holy  Roman  Empire  the  spirit  of 
religious  reform  became  rife  almost  as  early  as  in  England. 
Germany  became  the  heart  and  soul  of  the  Great  Protestant 
Reformation.  Along  with  the  Reformation  came  the  best 
system  of  general  education  in  any  part  of  Europe.  Founda- 
tions were  thus  laid  for  a  unified  language  and  a  great  literature. 
These  and  many  other  forces  tended  to  the  formation  of  a  great 
state.  National  asj)irations,  however,  found  no  adequate  means 
of  political  expression. 

Influence  of  the  French.  —  Educated  Germans  were  pro- 
foundly affected  by  the  luiropean  movement  which  found  ex- 
pression in   the  French  Revolution.     Many  Germans  became 


THE   ORIGIN  OF  THE   GERMAN   EMPIRE  595 

republicans,  States  adjoining  France  being  especially  infected 
with  liberal  sentiments.  The  Napoleonic  codes  of  Roman  Law 
were  adopted  by  many  German  States,  superseding  the  older 
Roman  Law  which  had  been  the  common  law  of  the  States, 
but  was  for  the  most  part  discontinued  with  the  advent  of  Prot- 
estantism. The  older  law  had  become  associated  with  Roman 
tjo^anny,  while  the  new  French  law  implied  greater  freedom  and 
equahty. 

In  1804  Napoleon  assumed  the  title  of  Emperor  of  the  French. 
He  had  already  made  himself  master  of  a  considerable  part  of 
Europe.  Two  years  later  Francis  II  of  Austria  resigned  his 
imperial  office  and  retained  simply  his  hereditary  dominions 
under  the  title  of  Emperor  of  Austria. ^  This  terminated  the 
Holy  Roman  Empire  and  Austria  became  simply  one  of  the 
German  States.  For  Napoleon  the  ancient  Roman  title  carried 
with  it  the  idea,  not  only  of  conquest,  but  of  a  reorganized  and  an 
improved  government.  His  system  of  laws  was  temporarily 
imposed  upon  Germany.  Three  hundred  petty  dominions  in 
northern  Germany  were  reduced  to  less  than  forty.  Napoleonic 
pressure  also  induced  the  King  of  Prussia  and  other  German 
rulers  to  inaugurate  great  and  far-reaching  reforms,  but  the  great 
mass  of  the  peasantry  were  still  serfs,  bound  to  the  soil. 

While  France  was  creating  a  new  system  of  land  tenure  upon 
the  ruins  of  the  old,  educated  reformers,  of  whom  Baron  Stein 
was  chief,  were  making  a  profound  study  of  the  needs  of  Ger- 
many. A  comprehensive  plan  of  reform  was  perfected,  involving 
not  only  the  liberation  of  the  serfs  and  changes  in  land  tenure, 
but  also  improvements  in  local  government  in  town  and  country. 
Frederick  WiUiam  III,  the  autocratic  King  of  Prussia,  stood 
like  a  stone  wall  against  the  proposed  reforms,  but  when,  finally, 
in  1807,  Napoleon  was  threatening  the  complete  destruction 
of  Prussia,  the  opposition  of  the  King  gave  way  and  Baron  Stein 
became  chief  minister  of  state.  From  Prussia  the  reforms 
extended  to  other  States  and  in  18 13  she  became  an  cilective 
leader  in  the  war  of  liberation  from  Napoleonic  rule. 

A  More  Perfect  Union.  —  Germany's  great  need  was  for  some 
adequate  means  of  giving  expression  to  German  public  opinion. 
The  consciousness  of  common  interests  among  the  States  had 
been  growing  for  centuries.     The  wars  of  liberation  from  Na- 

'  Bryce,  "  The  Holy  Roman  Empire,"  p.  366. 


596  COMPAR.\TIVE   FREE   GOVERNMENT 

poleonic  rule  greatly  intensified  the  national  spirit.  To  render 
effective  the  pending  reforms  called  for  a  central  government. 
At  the  end  of  the  Napoleonic  wars  (1815)  conditions  favored  a 
united  Germany  under  a  liberal  government.  A  new  federation 
was  formed.  Many  of  the  smaller  States  adopted  constitutions 
providing  for  parliamentary  governments.  But  the  two  most 
powerful  States,  Austria  on  the  south  and  Prussia  on  the  north, 
clung  to  the  old  absolute  monarchy  and  through  their  influence 
free  government  in  the  other  States  was  suppressed.  The 
fact  that  Austria  and  Prussia  contained  a  mixed  population  of 
aUen  races  increased  the  difficulty  of  union.  The  States  of  the 
west  made  various  attempts  to  form  an  exclusively  German 
state  with  a  liberal  government.  All  such  efforts  were  brought 
to  naught  by  the  overpowering  despotic  States.  Both  Austria 
and  Prussia  gave  effective  support  to  the  reactionary  monarchial 
party  in  each  State.  The  princes  were  restored  to  full  power. 
The  Diet,  the  only  organ  of  the  Confederacy,  was  controlled 
by  the  absolute  monarchies.  Free  government  in  the  small 
States  was  treated  as  revolutionary.  A  strict  censorship  was 
established  over  the  teaching  in  schools  and  universities,  and 
over  the  public  press.^  Public  meetings  were  forbidden  except 
under  police  control.  The  enemies  of  democracy  everywhere 
gained  control  of  the  actual  agencies  of  government ;  no  op- 
portunity was  given  for  the  people  to  acquire  practical  political 
experience.  Agitation,  however,  was  continued,  and  as  a  result 
of  the  popular  uprisings  of  1848  both  Austria  and  Prussia  were 
induced  to  acce])t  constitutions  which  recognized  i)opular  rights. 
But  the  Austrian  concessions  were  at  once  rei)udialed  and  the 
Prussian  Constitution  was  so  modified  and  so  interpreted  as 
to  retain  supreme  power  in  royal  hands. 

The  revolutions  of  1848  greatly  weakened  the  confederation, 
which  included  both  Austria  and  Prussia.  An  insistent  demand 
had  arisen  on  the  part  of  the  Liberals  that  a  federated  state 
should  be  formed  to  take  the  i)lace  of  the  existing  loose  con- 
federation. Delegates  from  all  the  German  States  met  at  Frank- 
fort in  184S  to  [)rovide  for  a  more  perfect  union,  and  a  liberal 
Constitution  was  formulated.  The  majority  of  the  conxention 
was  unwilling  to  admit  Austria  to  the  union  with  all  her  non- 
German  provinces,  and  Austria  was  unwilling  to  divide  her  em- 

'  Scignobos.  "A  Political  History  of  Contemporary  Europe,"  Vol.  I,  p.  385. 


THE   ORIGIN  OF  THE   GERMAN  EMPIRE  597 

pire  for  the  sake  of  membership  in  the  union.  A  decision  was 
finally  reached  to  exclude  Austria  and  to  offer  to  the  King  of 
Prussia,  with  the  title  of  Emperor  of  the  Germans,  the  chief 
place  in  the  new  federated  state.  Frederick  Wilham  IV  had 
masterful  views  concerning  the  divine  right  of  rulers.  He 
believed  that  the  people  had  no  right  to  usurp  divine  authority 
in  the  choosing  of  kings  and  emperors,  and  he  therefore  refused 
to  accept  the  office  at  the  hands  of  a  representative  assembly. 
All  efforts  to  obtain  a  national  representative  government 
failed,  and  the  old,  discredited  confederation  was  continued 
with  Austria  in  control. 

The  King  of  Prussia  was  induced  through  fear  of  violence  to 
issue  a  constitution  in  January,  1850,  which  is  still  in  force. 
It  emanates  directly  from  the  monarch  and  involves  no  form  of 
ratification  or  acceptance  on  the  part  of  the  people.  Many  of 
its  articles  are  taken  from  a  liberal  constitution  which  a  repre- 
sentative assembly  had  approved ;  but  they  are  so  selected  and 
are  so  interpreted  as  to  leave  the  royal  will  supreme.  The 
Upper  House  of  the  Prussian  legislature  is  composed  of  appointees 
of  the  king.  The  members  of  the  Lower  House  are  elected  in 
separate  districts  by  universal  manhood  suffrage ;  the  method 
of  electing,  however,  gives  the  actual  choice  of  members  to  the 
rich.  The  election  is  indirect.  Three  sets  of  electors,  equal  in 
number,  are  chosen  at  a  primary  election.  The  wealthy  voters, 
who  pay  one  third  of  the  taxes,  choose  one  third  of  the  electors. 
The  poor,  who  are  a  large  majority  of  the  voters,  elect  a  third  of 
the  electors.  The  moderately  wealthy  elect  the  remaining  third. 
By  this  process  one  tenth  of  the  voters  may  secure  a  two-thirds 
majority  in  the  electoral  college  which  names  the  members  of  the 
Lower  House  in  the  legislature.  Moreover,  the  numerous 
officers  in  the  public  service  are  admonished  by  an  imperial 
rescript  interpreting  the  Constitution  that  they  are  to  support 
the  government  at  elections.^  With  one  house  directly  subject 
to  the  dictation  of  the  king  and  the  other  thus  hedged  about  and 
restricted  it  would  seem  impossible  for  the  people  to  gain  control 
of  any  official  agency.  Yet  such  was  the  popular  reprobation 
of  the  arbitrary  rule  following  the  promulgation  of  the  Consti- 
tution that  the  party  of  opposition  to  the  Crown  did  gain  control 
of  the  Lower  House  in  1S61. 

'  Below,  p.  600. 


598  COMPAR.\TIVE   FREE   GOVERNMENT 

The  King,  Frederick  William  IV,  became  permanently  insane 
in  1858  and  his  brother  William  ruled  as  regent  until  the  death 
of  the  King  (1861).  William  I  had  for  many  years  been  exceed- 
ingly unpopular  on  account  of  his  opposition  to  reform.  For  a 
time  he  was  expatriated.  His  insistence  upon  a  greatly  amplified 
and  reorganized  military  system  had  aroused  great  opposition 
during  the  regency  (1858-1861).  On  assuming  the  crown 
William  I  gave  expUcit  expression  to  the  traditional  doctrine  of 
the  Dynasty,  declaring  that  the  crown  was  a  direct  gift  from 
God  to  the  royal  house  and  that  the  monarch  had  no  right  to 
submit  to  dictation  from  the  representatives  of  the  people. 
The  Lower  House  refused  to  vote  approval  of  the  military 
budget  and  after  repeated  dissolutions  became  practically  unani- 
mous in  opposition  to  the  King.  There  seemed  no  reason  to 
doubt  that  the  legislature  expressed  the  sentiment  of  the  people, 
and  rather  than  submit  to  the  popular  will  as  expressed  in  the 
Assembly  William  I  determined  to  resign  his  office.  He  was, 
however,  induced  to  reconsider  that  decision  and  to  call  upon 
Prince  von  Bismarck,  a  notorious  opponent  of  parliamentary 
government,  to  organize  a  lighting  ministry  in  support  of  the 
Crown. 

The  Policy  of  Blood  and  Iron.  —  On  assuming  the  office  of 
Chancellor,  Bismarck  gave  expression  to  a  matured  policy  for 
securing  German  unity.  "  The  unity  of  Germany,"  said  he, 
"  is  to  be  brought  about,  not  by  speeches  nor  by  votes  of  majori- 
ties, but  by  blood  and  iron."  ^  The  Prussian  army,  not  Prussian 
liberalism,  was  to  unite  Germany.  For  several  years  the  govern- 
ment was  conducted  in  utter  disregard  of  the  hostile  assembly. 
A  war  against  Denmark  was  waged  in  1864  for  the  conquest 
of  Schleswig-Holstein.  In  1866  was  waged  a  brilliantly  suc- 
cessful war  against  Austria.  This  made  an  end  of  the  Con- 
federacy of  18 1 5. 

With  Austria  .severed  from  the  rest  of  Germany  it  Ijccame 
possible  to  organize  a  federated  German  state  under  the  leader- 
ship of  Prussia.  To  this  end,  a  constitution  was  formulated 
and  accepted  by  a  majority  of  the  States  in  1867.  With  the 
army  triumphant,  a  Prussian  Legislature  was  elected  which 
voted  approval  of  past  acts  and  sustained  current  policies  of  the 
government.     Four  important  States  held  aloof  from  the  federa- 

•  Scignobos,  "A  I'olilical  llisl<jry  of  ContcmpDrary  ICuropc,"  Vol.  II,  p.  461. 


THE   ORIGIN  OF  THE  GERMAN  EMPIRE  599 

tion.  They  were,  however,  induced  to  unite  in  the  war  against 
France  in  1S70  and  after  the  triumph  over  Napoleon  III,  all 
the  States  joined  the  Union.  At  Versailles,  January  i,  1871, 
WiUiam  I,  King  of  Prussia,  was  crowned  President  of  the  Em- 
pire with  the  title,  German  Emperor.  The  Constitution  of  1867 
was  transformed  into  a  frame  of  government  for  the  Empire. 
Thus  Bismarck's  promise  was  literally  fulfilled ;  Germany  was 
united  by  a  poHcy  of  "  blood  and  iron." 

Royal  Interpretation  of  the  Constitution.  —  The  Constitution 
of  Prussia  and  the  Constitution  of  the  Empire  have  been 
formed  by  those  who  were  actively  opposed  to  parliamentary 
government.  Every  attempt  on  the  part  of  the  people  to  achieve 
liberty  of  action  has  been  brought  to  naught.  Serfs  have  re- 
ceived emancipation  as  the  gracious  gift  of  absolute  rulers  and 
from  the  same  source  has  come  the  right  to  vote.  When  Bis- 
marck, in  1866,  expressed  a  willingness  to  have  one  house  of 
the  -proposed  Legislature  composed  of  delegates  elected  by 
universal  suffrage  from  all  parts  of  the  Confederation,  the  prop- 
osition seemed  to  be  in  flat  contradiction  to  all  his  previous 
policies.  It  was,  in  fact,  the  Chancellor's  highest  bid  for  a 
united,  Prussianized  Germany.  He  needed  popular  support 
to  compel  the  other  German  monarchs  to  submit  to  the  rule  of 
the  King  of  Prussia.  By  means  of  this  provision  in  the  Constitu- 
tion of  the  Confederation  liberal  sentiment  was  conciliated. 

But  it  was  still  far  from  Bismarck's  intention  that  the  people's 
representatives  should  govern  the  Empire.  Germany  was  to  be 
ruled  by  Prussia,  and  Prussia  was  effectively  controlled  by  the 
army  and  the  bureaucracy.  By  means  of  the  army,  opposition 
in  the  Prussian  legislature  had  been  overcome.  Bismarck's  in- 
tention is  made  clear  by  an  order  issued  in  1882  explaining 
Article  44  of  the  Prussian  Constitution,  which  reads :  "  The 
King's  Ministers  are  responsible.  All  government  acts  (docu- 
mentary) of  the  King  require  for  their  validity  the  approval  of 
a  minister,  who  thereby  assumes  responsibility  for  them."  ^ 
The  liberals  maintained  that  this  article  was  a  guarantee  for 
parliamentary  government.  A  rescript  was  issued  by  William  I 
signed  by  Bismarck  to  correct  this  interpretation.  It  emphati- 
cally denies  that  ministerial  responsibility  deprives  the  monarch 
of  complete   independence   of   action.     The   significant   clause 

1  Lamed,  "History  for  Ready  Reference,"  Vol.  I,  p.  5g8. 


6oo  COMPARATIVE   FREE   GOVERNMENT 

reads :  "It  (the  liberal  interpretation)  is  therefore  not  admis- 
sible, and  leads  to  obscuration  of  the  constitutional  rights  of 
the  King,  when  their  exercise  is  so  spoken  of  as  if  they  emanated 
from  the  Ministers  for  the  time  being  responsible  for  them,  and 
not  from  the  King  himself.  The  Constitution  of  Prussia  is  the 
expression  of  the  monarchial  tradition  of  this  country,  whose 
development  is  based  on  the  living  and  actual  relations  of  its 
Kings  to  the  people.  These  relations,  moreover,  do  not  admit 
of  being  transferred  to  the  Ministers  appointed  by  the  King, 
for  they  attach  to  the  person  of  the  King.  Their  preservation, 
too,  is  a  political  necessity  for  Prussia.  It  is,  therefore,  my  will 
that  both  in  Prussia  and  in  the  Legislative  Bodies  of  the  realm 
there  may  be  no  doubt  left  as  to  my  own  constitutional  right 
and  that  of  my  successors  to  personally  conduct  the  policy  of  my 
•Government.  ...  It  is  the  duty  of  my  IVIinisters  to  support  my 
constitutional  rights  by  protecting  them  from  doubt  or  obscura- 
tion and  I  expect  the  same  from  all  State  servants  who  have 
taken  to  me  the  ofl&cial  oath."  ^  The  rescript  further  states 
that  all  officers  shall  refrain  from  all  agitation  against  the 
Government  and  vote  for  those  who  support  government 
policies  or  be  removed  from  office.  It  is  to  be  noted,  also,  that 
the  principle  here  announced  is  applied  not  only  to  Prussia,  but 
to  all  officers  and  official  bodies  in  the  Empire.  The  royal  in- 
terpretation is  thus  placed  in  apparent  contradiction  to  the 
words  of  the  Constitution,  and  the  principles  of  democracy 
are  distinctly  repudiated. 

In  a  book  on  "  Imperial  Germany  "  written  a  hundred  years 
after  the  war  of  liberation  Prince  von  Biilow  says :  "  In  the 
German  Empire,  Prussia  is  the  leading  State.  'J'he  Social  Dem- 
ocratic movement  is  the  antithesis  of  the  Prussian  State.  .  .  . 
The  peculiarity  of  the  Prussian  State,  which  is  the  backbone  of 
our  political  life,  makes  a  solution  of  the  Social  Democratic  prob- 
lem [)articularly  difficult  for  us.  The  practical  modus  vivendi 
with  the  Social  Democrats,  that  has  been  attempted  here  and 
there  in  Southern  Germany  does  not  seem  possible  in  Prussia. 
Prussia  attained  her  greatness  as  a  country  of  soldiers  and 
officials,  and  as  such  she  was  able  to  accomplish  the  work  of 
Cierman  union;  to  this  day  she  is  still  in  all  essentials  a  State 
of  .soldiers  and  officials."  '^ 

'  f..irncil,  "Fli-^lury  for  Ready  Reference,"  Vol.  I,  p.  6oi. 
»  von  Hulow,  "  Imperial  (lermany,"  p.  226. 


THE  ORIGIN   OF  THE   GERMAN   EMPIRE  6oi 

This  utterance  of  Prince  von  Bulow  summarizes  the  points  of 
chief  interest  in  the  relations  of  the  Empire  to  free  government. 
First,  it  points  out  that  the  Prussian  government  is  opposed  by 
the  Prussian  people.  Second,  it  contrasts  Prussia  with  the  more 
liberal  German  States.  Third,  it  emphasizes  the  military  as 
opposed  to  civil  authority.  Germany  exhibits  on  a  grand 
scale  the  age-long  conflict  between  autocracy  and  democracy. 

REFERENCES 

Bismarck.     The  Man  and  the  Statesman;  Reflections,  etc.  by  Himself. 

Bryce.  The  Holy  Roman  Empire,  Edition  1887,  Chap.  XIX,  and  Supple- 
mentary Chap. 

BiJLOW.     Imperial  Germany. 

Howard.     The  German  Empire,  Chaps.  I-VII. 

Ogg.     The  Governments  of  Europe,  Chap.  IX. 

Seignobos.  a  Political  History  of  Contemporary  Europe,  Vol.  II,  Chaps. 
XIV,  XV. 

SoHM.     Institutes  of  Roman  Law,  by  Ledlie,  Edition  1907,  Part  II. 

Wilson.     The  Stale,  pp.  191  ff.,  1896. 


CHAPTER  LI 

The  Present  Constitution  and  Government 

To  complete  the  union  of  the  German  States  it  was  necessary 
in  the  first  place  to  determine  the  relation  of  the  State  of  Prussia 
to  the  proposed  government.  This  was  done  by  giving  to  the 
Prussian  King  the  office  of  President  of  the  Federation. 
William  I  wished  to  be  crowned  Emperor  of  Germany,  but  the 
other  rulers,  jealous  of  their  own  rank,  refused  to  accede  to  his 
desire.  A  compromise  was  effected  which  gave  to  the  President 
the  title  of  Deutscher  Kaiser  —  German  Emperor.  The 
German  union  is  not  itself  a  monarchy,  but  a  federation  of 
monarchs  and  free  cities  under  a  President  having  the  title  of 
Kaiser,  and  the  King  of  Prussia  is  ex  officio  Emperor. 

The  Frame  of  Government.  —  The  second  object  to  be 
attained  was  a  united  governing  body  for  the  twenty-two 
monarchies  and  the  three  Free  Cities.  Through  the  creation 
of  the  Bundesrath,  a  Federal  Council  of  fifty-eight  members, 
this  was  accomplished.  In  the  council  Prussia  has  seventeen 
members  with  seventeen  votes ;'  Bavaria  has  six ;  Saxony 
and  Wiirtemburg  four  each ;  Baden  and  Hesse  three  each ; 
two  other  States  have  two  each,  and  all  the  rest  one  each. 

The  Bundesrath  is  not  what  is  usually  called  a  deliberative 
body,  but  rather  an  asseml^ly  of  delegates  appointed  by  the 
princes  of  the  States  and  the  Senates  of  the  Cities,  who  act 
under  instructions  from  ihc  rulers  who  appoint  them.  If  a 
Slate  is  entitled  to  more  than  one  vote,  all  the  votes  are  cast 
by  the  head  of  the  delegation.  For  instance,  the  six  votes  of 
Bavaria  are  cast  by  the  King  of  Bavaria.  The  "  unit  rule  "  in 
voting  prevails.  On  nearly  all  questions  a  simple  majority  is 
reciuired  to  bind  all  the  States.  The  assembly  of  delegates  is 
designed  to  cn.ihlc  llic  nionarchs  to  control  all  (l(-'|)artnu'iils  of 

'  Thri-c  aflditional  votes  are  (onlrollcd  by  Prussia.  —  Lowell,  "  (iovcrnmcnts 
and  I'arlics  in  Continental  Europe,"  Vol.  I,  p.  260. 

O02 


THE   PRESENT   CONSTITUTION   AND   GOVERNMENT      603 

the  government,  legislative,  administrative,  and  judicial. 
Though  the  Constitution  concedes  to  the  popular  House  the 
right  to  initiate  legislation,  in  practice  all  important  measures, 
including  taxation,  originate  in  the  Bundesrath.  Bills  prepared 
there  are  submitted  to  vote  in  the  Reichstag,  and  the  members 
of  the  Upper  House  are  expected  to  enter  the  Lower  House 
freely,  seeking  to  persuade  its  members  to  adopt  the  measures 
proposed. 

The  growing  sense  of  nationality  among  the  people  was  recog- 
nized in  a  representative  Assembly  —  the  Reichstag  — ■  elected 
by  secret  ballot,  all  male  citizens  twenty-five  years  of  age  having 
a  right  to  vote.  The  Constitution  assigns  one  member  for  every 
100,000  inhabitants.^  The  election  is  by  single  districts  and 
each  district  must  lie  wholly  within  a  single  State.  When  the 
Constitution  was  adopted  there  were  382  districts  entitled  to 
one  member  each  in  the  Assemblies ;  in  1873  15  were  added  for 
Alsace-Lorraine.  In  the  distribution  Prussia  receives  236, 
while  a  number  of  the  States  have  but  one  each.  No  redistri- 
bution of  seats  has  taken  place  since  187 1.  The  number  re- 
mains 397  and  great  inequality  prevails.  Growing  centers  of 
population,  such  as  Berlin,  for  example,  have  only  a  small  pro- 
portion of  the  representation  to  which  they  are  entitled.  The 
term  of  office  in  the  Reichstag  is  five  years,  though  the  House 
may  be  dissolved  by  the  Emperor  with  the  consent  of  the 
Bundesrath. 

These  institutions  form  the  framework  of  the  Imperial 
Government.  To  Prussia  as  the  leading  kingdom  is  conceded 
the  office  of  Emperor.  The  Bundesrath  is  the  agent  of  the  ruling 
powers  of  the  various  States,  and  the  Reichstag  is  a  concession 
to  the  people  of  a  voice  in  the  government.  From  many  points 
of  view  the  Constitution  is  unique  and  most  interesting.  Only 
those  features  of  the  government  can  be  discussed  here  which 
appear  to  throw  light  upon  the  conflict  between  autocracy 
and  democracy. 

The  Chancellorship  under  Bismarck.  —  As  shown  in  the  pre- 
ceding chapter,  the  office  of  Chancellor  of  the  State  of  Prussia 
came  into  prominence  as  an  agency  for  resisting  the  threatened 
development  of  parliamentary  power.  Through  the  astute 
Bismarck  as  Chancellor,  the  Prussian  State  became  subservient 

_  •  Howard,  "  The  German  Empire,"  p.  85. 


6o4  COMPARATIVE   FREE   GOVERNMENT 

to  the  Crown.  The  Imperial  Constitution  of  1871  was  so 
drawn  as  to  imply  that  the  Imperial  Chancellor  should  be  the 
same  person  as  the  Chancellor  of  Prussia  and  should  fill  a 
corresponding  place  in  the  general  government.  The  office 
was  created  by  Bismarck  to  be  filled  by  himself,  that  he  might  be 
at  the  same  time  the  head  of  the  Prussian  ministry  and  the  sole 
responsible  administrator  of  the  Empire. 

To  the  Imperial  Chancellor  is  assigned  the  duty  of  presiding 
over  the  meetings  of  the  Bundesrath.  It  was  Bismarck  and 
not  the  Kaiser  who  actually  controlled  the  one  assembly  of 
highest  authority.  His  duties  and  powers  as  chairman  of  that 
body  are  numerous.  He  arranges  the  order  of  business,  re- 
ceives petitions,  and  may  appoint  a  Vice  Chancellor  to  preside 
in  his  place. 

While  the  Constitution  does  not  declare  in  express  terms  that 
the  Chancellor  and  Vice  Chancellor  shall  always  be  members 
of  the  Prussian  delegation  to  the  Bundesrath,  yet  such  is  the 
implication  and  such  has  been  the  practice.  With  the  full 
power  of  the  great  State  of  Prussia,  the  Chancellor  wields  a 
tremendous  influence  over  legislation.  He  is  chief  sponsor 
for  government  bills;  as  a  member  of  the  Bundesrath  he 
has  free  access  to  the  Reichstag,  and  in  some  way  he  secures 
majorities  in  the  popular  assembly  for  the  measures  of  the  gov- 
ernment. 

Orders  and  decrees  issued  by  the  Kaiser  are  countersigned  by 
the  Chancellor,  who  thereby  becomes  responsil)le  for  their 
execution.  All  administrative  business  is  in  his  hands.  The 
heads  of  departments,  though  in  form  appointed  by  the  Kaiser, 
are  in  fact  chosen  by  the  Chancellor  and  are  subject  to  his  com- 
mands. All  officers  in  the  administrative  service  arc  likewise 
subject  to  his  orders.  The  prerogatives  of  the  Kaiser  are,  in- 
deed, exercised  by  the  Chancellor. 

Relation  of  the  States  to  the  Central  Government.  —  The 
separate  Stales  flo,  howex'er,  in  practice,  limit  the  j)ower  and 
res[)onsibility  of  the  Chancellor,  since  a  large  j)roportion  of  the 
laws  passed  by  the  Imperial  Legislature  are  left  to  them  for 
execution.  All  ci\il,  criminal,  and  commercial  codes  adopted 
for  the  Kmj)ire  are  executed  by  the  individual  States.  At  the 
.same  time  it  is  the  duty  of  the  Kaiser  to  supervise  the  action 
of  state  officers  in  executing  federal  laws.     But  this  too  is  done 


THE   PRESENT   CONSTITUTION   AND    GOVERNIVIENT      605 

through  the  Chancellor.  So  long  as  state  officers  satisfactorily 
administer  Imperial  laws  they  are  independent  of  the  Chan- 
cellor. But  if  a  State  fails  in  that  respect,  it  is  the  Chancellor's 
duty  to  bring  the  matter  before  the  Bundesrath,  and  that  body 
may  order  an  execution.  In  such  a  case  the  Chancellor  has  the 
Imperial  army  at  his  command  for  coercing  the  State  into  com- 
pliance with  the  laws. 

To  understand  the  obvious  contrast  between  the  German 
and  American  types  of  federation  one  must  recognize  the  funda- 
mental difference  between  the  Roman  and  the  Anglo-Saxon 
legal  systems  previously  described.  The  German  Imperial 
Codes  deal  mainly  with  private  rights.  Many  of  the  States 
had  been  long  accustomed  to  administer  the  Code  Napoleon, 
and  the  codes  which  were  substituted  in  the  Empire  were  similar 
in  both  form  and  substance.  It  is  natural  that  the  Roman  Law 
Codes  should  continue  to  be  administered  by  state  officers. 
But  the  decentralized  administration  is  by  no  means  restricted 
to  the  defense  of  private  rights.  Laws  pertaining  to  Imperial 
taxation,  banks,  insurance,  labor  organizations,  etc.,  which  are 
enacted  by  the  general  legislature  are  executed  by  the  separate 
States.  Bavaria  and  Wurtemburg  secured  especial  conces- 
sions in  respect  to  postal  and  telegraph  service.  These  constitu- 
tional provisions  testify  to  the  jealousy  of  the  States  in  guarding 
their  administrative  independence.  Although  the  Empire  is 
highly  centralized  in  legislation,  the  States  have  retained  a  wide 
range  of  administrative  power. 

It  is  clear,  however,  that  the  limitations  upon  the  authority 
of  the  Chancellor  arising  from  the  decentralized  administration 
are  more  apparent  than  real.  In  the  first  place  it  must  be  re- 
membered that  nearly  two  thirds  of  the  people  of  the  Empire 
live  in  Prussia,  and  that  Prussian  and  Imperial  legislation  are 
in  the  same  hands.  So  far  as  Prussia  is  concerned,  separate 
state  power  is  favorable  to  the  autocracy  because  of  the  restricted 
Prussian  franchise.  In  the  other  States  also  Imperial  control 
is  maintained  by  the  reservation  of  important  administrative 
business  immediately  in  the  hands  of  Imperial  officers.  Such 
are  the  entire  foreign  service  and  the  management  of  naval 
affairs.  The  Prussian  army  system  is  extended  into  every 
State  and,  with  slight  concessions  to  state  authorities  in  the 
matter  of  appointments,   the  Emperor  controls   the  military 


6o6  COMPARATIVE  FREE   GOVERNMENT 

forces.  Postal  and  telegraph  officers  subject  to  the  will  of  the 
Kaiser  carry  Imperial  influence  into  every  part  of  the  country. 
Add  to  all  this  the  power  of  the  Imperial  Chancellor  to  interfere 
in  all  matters  affecting  the  interests  of  the  Empire,  and  it  is 
plain  that  the  spirit  and  methods  of  the  Prussian  bureaucracy 
effectively  prevail  in  every  State.  The  whole  country  has 
been  essentially  Prussianized. 

King,  Chancellor,  and  People.  —  The  Imperial  Constitution 
grew  directly  out  of  the  contest  between  King  and  people  in  the 
State  of  Prussia,  and  by  making  Prussia  the  controlling  member 
in  a  union  of  German  States  it  has  become  possible  thus  far  to 
eliminate  thoroughly  the  people  from  any  effective  share  in 
the  government.  There  can  be  no  doubt  of  the  intention  of  the 
framers  of  the  Constitution  to  continue  to  maintain  and  extend 
this  autocratic  dominion.  By  the  rescript  quoted  above,^ 
which  was  issued  eleven  years  after  the  adoption  of  the  Constitu- 
tion of  1 87 1,  the  principle  of  autocracy  is  specifically  reaffirmed 
and  every  vestige  of  parliamentary  government  repudiated. 
Prince  von  Billow  declares :  "  He  [Bismarck]  held  the  reins  of 
Government  with  such  an  iron  grip  that  he  never  ran  any  risk 
of  letting  the  least  scrap  of  power  slip  into  the  hands  of  Parlia- 
ment." "  The  German  Constitution  is  a  constitution  by  the 
autocrat  and  for  the  autocrat.  King,  Chancellor,  Kaiser 
were  three  in  one,  and,  so  long  as  the  Old  Emperor  and  Bismarck 
belonged  to  the  trio,  that  one  was  the  Chancellor.  It  was 
Bismarck  who  had  restored  to  the  Prussian  King  his  crown  when 
he  had  determined  to  surrender  it.  He  it  was  who  had  welded 
the  German  States  into  a  mighty  Empire  and  had  created  the 
new  title  of  Kaiser.  Until  the  death  of  William  I,  in  1888,  King 
and  Chancellor  ruled  as  one  man. 

Necessarily  the  Constitution,  in  form,  i)laccs  the  authority 
in  the  Kaiser's  hands.  None  of  it  whatever  pertains  of  right  to 
the  Chancellor.  He  is  the  Emperor's  chief  ministerial  officer, 
ai)j)ointcd  by  him,  removable  at  his  will,  and  resjjonsible  to  him 
alone.  Yet  in  the  eyes  of  the  public  Bismarck  held  a  position 
not  inferior  to  that  of  the  Kaiser  himself  as  the  recognized  cus- 
todian of  Imperial  authority.  The  Emperor  Frederick  is  under- 
stood to  have  Ijeen  favorable  to  parliamentary  government; 
but  to  inaugurate  a  policy  Inisefl  uj)()ii  that  principle  would  have 

'  i'.  'XX).  '  von  Biilow,  "  Im|)crial  Germany,"  New  York,  1914,  P-  175. 


THE   PRESENT   CONSTITUTION   AND   GOVERNMENT      607 

involved  a  break  with  Bismarck.  The  Emperor's  illness  and 
untimely  death  forestalled  a  change  in  policy. 

William  II  came  to  the  throne  imbued  with  high  notions  con- 
cerning the  divine  right  of  the  Hohenzollern  Dynasty,  but 
Bismarck  had  discouraged  any  flaunting  of  dynastic  pride.  As 
defined  by  the  Constitution  the  Kaiser's  oiBce  is  simply  that  of 
President  of  the  Empire.  The  third  incumbent  has  magnified 
his  office.  He  has  effaced  the  distinction  between  King  of 
Prussia  and  the  German  Kaiser,  and  has  compelled  other  mon- 
archs  of  the  Empire  to  submit  to  a  dominion  which  they  repudi- 
ated in  the  beginning  when  they  accepted  the  Constitution. 
Bismarck  was  dismissed  from  office  in  1890,  and  a  foreign  policy 
which  had  been  consistently  condemned  by  the  old  Chancellor 
was  inaugurated.  William  II  rules  in  his  own  name ;  he  has 
never  permitted  a  minister  to  overshadow  him  or  seriously  to 
detract  from  his  royal  prestige.  The  possible  permutations  in 
the  relations  between  Kaiser  and  Chancellor  are  by  no  means 
exhausted.  The  first  Chancellor  humiliated  a  legislature  and 
exalted  a  King.  It  is  not  impossible  that  a  future  Chancellor 
may  humiliate  a  Kaiser  and  exalt  a  popular  assembly. 

The  Constitution  of  1871  is  still  the  law  of  the  land  and  im- 
plies, without  explicitly  so  stating,  that  the  Imperial  Chancellor 
as  a  Prussian  minister  is  a  member  of  the  Prussian  delegation  in 
the  Bundesrath.  As  the  head  of  that  delegation  he  controls, 
under  the  King's  direction,  one  third  of  the  votes  of  that  assem- 
bly. Other  rulers  of  States  are  likewise  accustomed  to  send  their 
chief  ministers  as  delegates.  It  follows,  therefore,  that  those 
who  participate  in  the  enactment  of  Imperial  statutes  are,  as 
State  officers,  active  in  their  execution. 

Administrative  and  Judicial  Functions  of  the  Bundesrath.  — 
The  Bundesrath  itself  likewise  has  important  administrative 
functions.  Its  consent  is  necessary  for  a  dissolution  of  the 
Reichstag.  It  shares  with  the  Kaiser  the  treaty-making  power. 
Except  in  case  of  invasion,  the  Kaiser  must  have  its  consent  to  a 
declaration  of  war,  and  it  shares  in  the  making  of  appointments. 
Twelve  committees  of  the  Bundesrath  are  appointed  each  year 
to  cooperate  with  the  Kaiser  in  Imperial  administration.  Those 
upon  the  Army  and  Navy  are  named  by  the  Kaiser.  Of  all  the 
committees  except  the  one  on  Foreign  Relations  the  chairman- 
ships belong  to  Prussia  and  arc  filled  by  the  King  of  that  State. 


6o8  COMPARATIVE   FREE   GOVERNMENT 

The  committees  correspond  in  general  to  the  various  adminis- 
trative departments,  and  it  is  their  duty  to  furnish  information 
for  the  guidance  of  the  executive. 

In  the  description  of  the  French  government  it  was  shown 
that  an  Executive  Council  and  various  other  administrative 
officers  perform  the  duty  of  amplifying  the  statutes,  explaining 
their  meaning  and  issuing  ordinances  for  their  more  effective 
administration.  In  Germany  this  woric  is  divided  between  the 
Emperor  and  the  Bundesrath.  In  the  first  instance  the  power 
to  issue  ordinances  rests  with  the  Bundesrath,  but  by  statute 
the  Emperor  is  empowered  to  put  forth  ordinances  in  specified 
lines  of  administration.  Hence,  the  same  authority  that 
initiates  projects  of  legislation  requiring  the  approval  of  the 
Reichstag  for  their  validity  also  issues  supplementary  orders 
which  are  valid  without  further  sanction. 

Germany  is  in  form  a  federal  state  in  which  twenty-five 
States  composing  the  Empire  share  with  the  general  government 
the  power  of  legislation  on  the  same  or  allied  subjects ;  in  which 
the  statutes  and  ordinances  of  the  general  government  are 
executed  and  adjudicated  by  officers  of  the  separate  States ; 
in  which  Imperial  officials  bound  to  obey  the  Kaiser  deal  with 
the  same  subjects  as  do  the  local  officers  subject  to  the  orders 
of  local  chiefs.  Inevitably,  numerous  occasions  must  arise  for 
clashing  between  authorities.  In  contests  involving  private 
rights  disputes  are  usually  settled  in  the  ordinary  courts  of  the 
State.  Yet,  if  serious  delinquency  is  alleged  so  that  justice  is 
denied,  the  cause  may  be  carried  to  the  Bundesrath.  It  is  the 
Bundesrath  that  issues  the  order  for  the  coercion  of  a  State. 
Disputes  l)ctween  States  may  also  be  settled  or  adjudicated  in 
that  body.  And  in  case  of  any  sort  of  disagreement  which  finds 
no  other  means  for  adjustment  recourse  is  had  to  the  one  insti- 
tution which  represents  all  the  sovereigns  united  in  the  Empire. 

Thus  far  the  Bundesrath  has  been  controlled  by  Prussia  in 
the  interest  of  autocracy ;  but  should  democracy  gain  a  pre- 
dominant influence  in  the  States,  a  new  type  of  delegate  would 
be  sent  to  it.  Without  essential  change  in  the  letter  of  the 
Constitution,  the  present  ruling  Ixxly  might  become  so  organized 
as  to  serve  the  democracy  in  matters  jiuHcial  and  administrative, 
while  in  respect  to  legislation  it  would  be  transformed  into  an 
innocuous  or  compliant  "  L'pi)er  House." 


THE   PRESENT   CONSTITUTION   AND    GOVERNMENT      609 

The  Popular  Assembly.  —  The  Reichstag  is  at  present  the 
one  check  upon  an  autocratic  government.  Its  members  are 
elected  by  secret  ballot  in  397  districts,  each  district  choosing 
one  member.  The  Constitution  says  that  the  members  of  the 
Reichstag  shall  be  representatives  of  the  entire  people ;  they 
are  not  subject  to  local  instruction  as  delegates  from  individual 
States.  The  institution  is  thoroughly  national.  It  has  power 
to  organize  itself,  to  adopt  its  own  rules  of  procedure,  and  to 
discipline  its  own  members.  Votes  and  utterances  in  the 
Reichstag  are  not  to  be  called  in  question  elsewhere.  The 
meetings  are  public  and  "  truthful  reports  "  of  proceedings  are 
permitted.  Members  have  immunity  from  arrest  or  legal  in- 
terference during  sessions.  To  dissolve  the  House  before  the 
end  of  the  frve  years  for  which  members  are  elected  requires 
the  consent  of  both  Kaiser  and  Bundesrath,  and  a  new  House 
must  be  elected  and  assembled  within  ninety  days.  During 
the  session  the  Emperor  may  adjourn  the  meetings  for  a  single 
period  of  thirty  days.  The  Constitution  gives  to  the  Reichstag 
the  right  to  originate  legislation,  as  well  as  to  approve  or  reject 
measures  presented  by  the  Bundesrath.  Oddly  enough,  mem- 
bers of  the  Reichstag  are  permitted  to  accept  office  and  still 
remain  members  of  the  House  if  reelected  by  their  constituents. 
This  rule  is  identical  with  that  followed  by  the  British  House 
of  Commons  in  respect  to  cabinet  appointments. 

As  compared  with  the  popular  assemblies  of  other  countries 
one  notable  weakness  appears  in  the  Reichstag.  It  has  not  the 
exclusive  right  to  originate  money  bills.  Article  35  of  the 
Constitution  specilles  a  long  list  of  sources  of  Imperial  revenue, 
such  as  customs,  the  taxation  of  salt,  tobacco,  etc.  The  income 
from  these  sources  not  even  the  Bundesrath  has  power  to  with- 
hold from  the  treasury.  A  proposition  to  diminish  such  taxes 
may  be  vetoed  by  the  presiding  officer  of  that  Chamber,  that  is, 
by  the  Chancellor,  as  instructed  by  the  King  of  Prussia.  For 
additional  support  to  the  treasury  an  annual  grant  is  required, 
but  the  Constitution  is  not  clear  as  to  the  rights  of  the  Lower 
House  in  voting  supplies.  All  expositors  agree,  however,  that 
a  levy  of  new  taxes  or  a  proposition  to  increase  the  rates  is  not 
valid  without  the  approval  of  that  House.  But  when  supplies 
have  once  been  legally  granted  and  are  deemed  continuously 
necessary  for  the  carrying  out  of  approved  policies,  the  govern- 


6lO  COMPARATIVE   FREE   GOVERNMENT 

ment  has  acted  upon  the  theory  that  the  annual  approval  of 
the  Reichstag  is  not  required. 

As  a  forum  for  public  utterance  the  Reichstag  has  accom- 
plished all  that  could  be  expected.  It  has  let  in  the  daylight 
upon  all  departments  of  public  affairs.  It  has  become  a  train- 
ing school  for  the  discovery  and  expression  of  public  opinion. 
The  House  is  itself  a  guaranty  of  larger  freedom  for  the  schools, 
the  churches,  and  the  public  press.  Drastic  and  effective 
suppression  of  liberty  of  speech,  such  as  prevailed  early  in  the 
last  century,  becomes  impossible.  This  was  demonstrated  in 
the  case  of  the  duel  between  the  government  and  the  Socialists 
from  1878  to  i8go.  Laws  were  enacted  for  the  complete  de- 
struction of  the  socialist  organization.  But  the  soldier  and  the 
policeman  could  not  follow  the  Socialist  in  the  Reichstag,  and 
the  party  flourished  under  persecution.  The  effort  at  sup- 
pression served  only  to  demonstrate  the  helplessness  of  the 
government,  and  after  twelve  years  of  failure  the  destructive 
policy  was  abandoned. 

Political  Parties.  —  The  century  of  agitation  that  preceded 
the  creation  of  the  popular  House  gave  to  large  classes  of  the 
citizens  experience  in  organization.  At  times  publicly  organ- 
ized political  parties  appeared.  When  the  parties  were  sup- 
pressed the  propaganda  for  free  speech  was  often  maintained 
in  secret.  Under  the  Prussian  Constitution  of  1850  a  party 
arose  in  the  legislature  in  opposition  to  the  government.  So 
important  were  the  issues  and  so  fierce  was  the  conflict  that  the 
two  parties  absorbed  almost  the  whole  membership ;  the  Con- 
servatives upheld  the  army  and  the  "  divine  right  "  pretensions 
of  the  King,  while  the  Progressives  urged  the  superior  rights  of 
the  Parliament. 

When  the  Reichstag  was  organized  the  Prussian  parties  were 
naturally  carried  over  into  the  new  national  assembly ;  but  in 
the  transition  important  subdivisions  and  modifications  took 
place.  Free  Conservatives  separated  themselves  from  the 
original  party  and  took  tluir  place  as  Moderate  Conservatives. 
The  Progressives  likewise  flividcd  permanently  into  Liberals 
and  Radicals,  Prussian  Liberals  uniting  with  those  from  other 
States  to  form  the  National  Liberal  party.  These  four  parties 
which  appeared  in  the  first  meetings  of  the  Reichstag  have  ever 
since  held  leading  places  in  the  Assembly.     They   conform    in 


THE   PRESENT   CONSTITUTION   AND   GOVERNMENT      6ll 

general  to  the  orthodox  model  furnished  by  the  French  Chamber 
of  Deputies  —  two  parties  of  the  Right  and  two  of  the  Left. 
For  six  years  Bismarck  secured  his  majorities  by  uniting  the 
two  moderate  sections  of  the  Right  and  the  Left.  At  the 
beginning  of  the  fight  with  the  SociaUsts,  in  1878,  he  was  led  to 
rely  upon  a  fifth  permanent  party  of  great  strength.  This  is 
the  Catholic  party,  which  in  the  Reichstag  is  called  the  party  of 
the  Center.  Of  all  the  five  permanent  parties  throughout  the 
entire  history  of  the  Reichstag  the  Catholic  party  has  been  the 
largest,  the  best  organized,  and  the  most  uniform  in  its  member- 
ship. The  Social  Democrats  elected  two  members  to  the  first 
Reichstag  in  1871,  and  since  that  date  the  number  has  been 
increased  at  almost  every  election.  In  1914  they  numbered 
no  and  formed  the  largest  of  the  party  groups.  There  are  in 
addition  a  half  dozen  small  groups  representing  local  or  special 
interests. 

These  few  facts  suffice  to  show  that  the  Reichstag  has  all  along 
been  performing  the  elemental  political  function  of  training  a 
citizenship  for  the  assumption  of  the  duties  of  self-government. 
To  furnish  such  preparation  to  Swiss  and  Anglo-Saxons  re- 
quired many  centuries  of  constant  endeavor.  The  French  have 
labored  continuously  at  the  problem  for  more  than  a  century. 
In  spite  of  certain  appearances  to  the  contrary,  the  Germans  in 
a  single  half  century  have  made  distinct  progress  toward  de- 
mocracy. 

As  soon  as  the  Great  Chancellor  had  ceased  to  lead  the  govern- 
ment forces,  his  successors  were  compelled  to  come  to  terms 
with  the  party  groups.  The  principal  issue  dividing  them  was 
the  question  of  the  rate  of  taxation  on  imports.  The  Agrarians 
favored  a  high  rate  on  competing  importations,  the  Industrials 
a  low  rate.  The  extreme  demands  of  the  farmers  were  resisted 
by  means  of  the  formation  of  a  party  coalition,  or  bloc,  made  up 
of  the  Catholic  Center  supported  by  various  conservative  groups. 
The  rule  of  the  bloc  lasted  for  more  than  a  decade. 

In  the  meantime  opposition  to  the  military  policy  of  the 
government  under  the  leadership  of  the  Social  Democrats 
became  a  chief  party  question,  and  after  the  election  of  1903 
the  government  had  great  difficulty  in  maintaining  a  majority. 
A  prolonged  contest  was  now  inaugurated  to  establish  the 
principle  of  parliamentary  government.     The   Reichstag  was 


6l2  COMPAR-VTIVE   FREE    GOVERNMENT 

dissolved  in  1906.  By  means  of  official  manipulation  the 
number  of  Social  Democrats  in  the  Chamber  was  reduced  from 
seventy-nine  to  forty-three  at  the  election  of  1907,  while  at  the 
same  time  the  Socialist  popular  vote  was  increased  by  almost  a 
quarter  of  a  million.  Then  came  a  direct  attack  upon  the 
Prussian  policy  of  governmental  interference  with  elections. 
A  national  demand  arose  for  the  amendment  of  the  Prussian 
Constitution,  in  order  to  admit  the  masses  of  the  people  to  equal 
suffrage,  and  in  191 2  the  reform  of  the  Prussian  election  laws 
became  one  of  the  issues  of  the  Imperial  election.  At  that 
election  the  Social  Democrats  made  a  gain  of  a  million  votes 
and  their  membership  in  the  Reichstag  grew  from  forty-three 
to  one  hundred  and  ten.  The  fact  that  a  vast  majority  of  the 
people  were  opposed  to  the  policy  of  the  government  was  fully 
demonstrated  at  that  time.  Multitudes  who  are  not  Socialists 
voted  the  Social-Democratic  ticket  in  order  to  support  the 
strongest  party  in  opposition  to  the  government.  Partly  as  a 
result  of  this  election  measures  of  reform  were  introduced  into 
the  Prussian  legislature.  Thus,  after  forty  years  of  public 
discussion  the  Reichstag  had  practically  won  a  great  victory 
for  free  government.  It  had  become  the  one  constitutional 
agency  for  giving  expression  to  the  will  of  the  German  people. 
The  issue  was  already  joined  against  the  one  effective  barrier 
to  German  liberty  —  that  is,  the  Prussian  "  divine  right  " 
autocracy.  This  was  the  condition  of  things  at  the  breaking 
out  of  the  War  in  1914. 

The  German  movement  towards  liberty  has  been,  in  its 
main  features,  thoroughly  orlhodo.x.  The  undisguised  absolute 
monarchy  ruled  down  to  the  Revolution  of  1848,  which  forced 
the  concession  of  a  Prussian  Constitution.  Following  that 
success,  a  contest  was  at  once  begun  to  transform  the  Consti- 
tutional Government  into  a  parliamentary  one;  and  in  1862 
the  Prussian  Parliament  was  apparently  triumphant.  But  the 
monarchy  gained  a  new  lease  of  life  and  power  when  the  union 
of  the  German  States  was  secured  by  means  of  foreign  wars. 
The  Union  having  been  effected,  the  Reichstag  l)ecame  the  one 
reliable  agency  for  advancing  the  cause  of  free  government. 
Political  parties  immediately  appeared  and  began  to  exert 
pressure  upon  the  government.  Forty  years  of  continuous 
experience  placed  the  people  of  the  l'"nipirc  in  a  position  to  give 


THE   PRESENT   CONSTITUTION   AND    GOVERNMENT      613 

forceful  assistance  to  the  people  of  the  State  of  Prussia  seeking 
to  get  control  of  their  state  government.  But  again  progress 
was  arrested  by  the  Great  War. 

Parliamentary  government  successfully  established  in  Prussia 
will  inevitably  be  followed  by  free  government  in  all  the  States. 
Ministers  chosen  by  the  people  will  sit  in  the  Bundesrath  in 
place  of  personal  representatives  of  the  monarchs,  and  that 
Chamber  will  freely  concede  to  the  Reichstag  the  place  of 
supreme  authority..  The  Upper  House  may  then  serve  the 
democracy  as  efificiently  as  it  has  hitherto  served  the  autocracy. 
The  office  of  Chancellor  may  be  readily  transformed  into  that 
of  Prime  Minister.  If  orthodox  lines  are  followed,  the  Chancel- 
lor will  cease  to  be  the  special  agent  of  a  single  State  and  will 
become  the  Chief  Minister  of  the  Imperial  Democracy.  As 
such  he  will  be  transferred  to  the  ruling  branch  of  the  legislature, 
where  he  will  surround  himself  with  a  cabinet  of  responsible 
associates. 

REFERENCES 

(See  Chap.  L.) 

DoDD.     Modern  Constitutions,  Edition  1909,  Vol.  I,  pp.  321  ff. 

Lowell.     Governments  and  Parlies  in  Continental  Europe,  Chaps.  Yl,  VII. 

Ogg.     The  Governments  of  Europe,  Chaps.  X-XIV. 

Seignobos.     a  Political  History  of  Contemporary  Europe,  Vol.  II,  Chap.  XVI. 

Wilson.     The  Stale,  Index  Titles,  Chap.  XII. ' 


SWITZERLAND 

CHAPTER  LII 

Origin  of  the  Swiss   Government 

Although  the  Swiss  Government  is  neither  Presidential,  after 
the  American  type,  nor  Cabinet,  after  the  English  or  the  French 
type,  Switzerland  is  among  the  freest  and  most  democratic  of 
states.  In  this  little  land  perched  on  the  roof  of  Western  Eu- 
rope rise  the  head  waters  or  tributaries  of  four  great  rivers,  the 
Rhine,  the  Rhone,  the  Danube,  and  the  Po,  flowing  to  four  seas. 
Swiss  glaciers  have  ground  from  the  mighty  Alps  the  soil  which 
these  streams  have  carried  to  form  adjacent  countries.  Up 
these  same  river  valleys  have  pushed  or  have  been  driven  Ger- 
man, French,  and  Italian  settlers.  The  Swiss  people  is  there- 
fore made  up  of  three  races.  Teutons,  French,  and  Italians  who 
speak  four '  native  tongues,  three  of  which  are  recognized  as 
official.  Sharp  religious  controversies  have  ended  in  toleration 
and  harmony  between  Catholic  and  Protestant  citizens.  Not- 
withstanding this  diversity  in  race,  language,  and  religion,  the 
Swiss  have  become  one  pc()i)le  loyal  and  devoted  to  the  Swiss 
Republic. 

Early  Swiss  Confederation.  —  From  the  Germanic  tribes  that 
overran  Switzerland  in  the  fifth  and  sixth  centuries  primitive 
local  institutions  have  survived  in  the  communes  and  in  the 
isolated  mountain  valleys;  these  have  preserved  much  of  their 
ancient  democratic  character.  Poverty  and  inaccessibility 
protected  these  communities  from  ()p|)ression  and  greed  and 
they  were  enabled  to  retain  a  large  degree  of  autonomy.  A 
town-meeting  of  mrde  citizens  governed  the  commune,  enacted 
by-laws,  and  ;i|ip<iinii(l  executive  officers.  Cantons  developed 
from  the  union  of  neighboring  communes  and  at  first  were 
governed   in    I  lie  same  way.     Six  of  the  smaller  cantons  still 

'  III   llic  (iri.sons  a  CDrrupl  form  of  Latin,  lalk-d   Kuinanscli,  is  still  spoken. 

f.14 


ORIGIN   OF   THE   SWISS    GOVERNMENT  615 

hold  an  annual  mass  meeting,  or  Landsgemeinde,  of  the  primitive 
sort,  composed  of  all  the  citizens.  In  this  assembly  laws  were 
enacted  and  executive  officers  appointed.  For  centuries  the 
early  cantons  conducted  themselves  like  sovereign  states, 
making  treaties  with  one  another  and  with  foreign  powers  and 
providing  for  their  own  defense.  In  other  cantons  representa- 
tive assemblies  of  delegates  elected  by  the  communes  consti- 
tuted the  governing  body.  Permanent  confederation  between 
cantons  began  to  be  effected  more  than  six  hundred  years  ago, 
in  1 29 1,  when  the  three  forest  cantons  of  Uri,  Schwytz,  and 
Unterwalden  formed  a  "  perpetual  league  "  against  the  Haps- 
burgs.  About  this  nucleus  other  cantons  gathered  and,  through 
various  governmental  vicissitudes,  by  the  end  of  the  Napoleonic 
wars  (181 5),  Switzerland  with  its  present  boundaries  and 
twenty-two  cantons  ^  had  worked  out  for  itself  a  constitution 
called  the  Federal  Pact,  which  was  formally  approved  by  all 
the  cantons. 

Under  the  Federal  Pact  no  real  union  was  effected ;  the 
cantons  reverted  nearly  to  the  independence  of  their  earlier  his- 
tory and  the  Diet  had  no  power  to  enforce  its  nominal  authority. 
At  the  same  time  individual,  political,  and  religious  liberty 
declined  and  democratic  institutions  were  at  a  low  ebb,  save  in 
the  smaller  and  weaker  cantons. 

The  revived  revolutionary  spirit  in  Europe  in  1830  was  in 
Switzerland  accompanied  by  a  reassertion  of  democracy. 
Many  of  the  cantonal  constitutions  were  revised.^  In  1848  a 
new  general  Constitution  was  adopted  embodying  various  needed 
reforms  and  expressing  a  decided  trend  toward  centralization 
and  radical  democratic  institutions.  A  later  Constitution,  that 
of  1874,  a  revision  of  the  previous  one,  embodied  many  amend- 
ments, improved  the  federal  organization,  and  gave  to  Switzer- 
land the  satisfactory  democratic  government  of  the  present 
day.  The  popular  uprisings  of  1848  found  the  country  already 
prepared  to  yield  local  privilege  and  to  become  a  democratic 
nation,  and  since  that  date  centralization  and  democracy  have 
gone  hand  in  hand. 

'  Three  of  these  are  divided  into  half  cantons,  so  that  for  purposes  of  local  govern- 
ment the  number  of  units  is  twenty-five. 

^The  period  between  1830  and  1848  was  marked  by  no  fewer  than  thirty  revi- 
sions of  cantonal  constitutions,  all  in  the  direction  of  a  broader  demoaacy. 
Ogg,  "  The  Governments  of  Europe,"  p.  409. 


6l6  COMPARATIVE   FREE   GOVERNMENT 

Each  of  the  twenty-five  political  units  which  now  compose  the 
Swiss  nation  possesses  a  large  measure  of  political  independence. 
As  in  England  and  the  United  States,  the  democracy  of  the 
general  government  of  Switzerland  has  been  the  result  of  a 
contest  for  local  privilege.  In  local  affairs  the  Swiss  have  from 
the  earliest  days  maintained  democratic  forms,  and  when  the 
French  Revolution  gave  to  them  the  theory  of  democracy  they 
appeared,  as  it  were,  to  the  manner  born.  Still,  it  was  through 
many  and  diverse  experiments,  involving  times  of  reaction  and 
failure,  when  many  citizens  were  deprived  of  their  political 
rights,  when  religious  tolerance  and  individual  liberty  were 
no  longer  enjoyed,  and  even  through  revolt  and  bloodshed, 
that  they  strove  on  towards  that  ideal  which  they  seem  now  to 
have  securely  attained. 

Unlike  the  other  states  of  Continental  Europe  Switzerland 
possessed  a  background  of  experience  that  made  for  liberty. 
It  is  apparent  that  in  each  country,  there  have  been  local  peculi- 
arities and  conditions  which  determine  or  modify  the  special 
forms  that  free  government  assumes.  In  America  an  experi- 
enced, liberty-loving  people  on  a  vacant  continent  worked  out  a 
federated  republic  based  upon  local  autonomy.  An  age-long 
conflict  between  political  factions  endangering  the  local  liberties 
of  the  people  finally  gave  to  England  a  peculiar  party  govern- 
ment in  which  power  became  centralized  in  two  competing 
groups  of  party  leaders.  In  France  local  autonomy  was  early 
destroyed  by  long-enduring  tyranny,  but  it  became  the  high 
mission  of  France  to  give  theoretic  expression  to  the  principle 
of  human  freedom  and  finally  to  organize  a  centralized  demo- 
cratic state.  In  Clcrmany  the  local  feudal  states  have  survived 
until  a  recent  flate,  and  federation  has  been  effected  through 
the  ancient  method  of  war  under  the  leadership  of  the  strongest 
states.  Still,  democracy  in  the  smaller  German  States  has 
forced  the  haiul  of  the  more  desjjotic  one  and  secured  a  rej)re- 
sentative  assembly  based  ui)on  a  form  of  universal  suffrage. 
No  two  states  are  alike  though  all  exemplify  dilTcrent  phases 
of  the  universal  movement  towards  free  government. 

The  distinctive  features  of  the  Swiss  state  are  largely  due 
to  the  i)liysiral  nature  and  situation  of  the  country.  'I'hrift, 
courage,  daring,  ;ind  independence  grew  from  the  soil.  It 
may  be  assumed  that  the  most  venturesome  and  liberty-loving 


ORIGIN  OF  THE   SWISS  GOVERNIHENT  617 

of  the  several  peoples  moved  farthest  up  the  valleys,  where 
they  made  the  final  stand  for  freedom.  The  country  was  too 
poor  to  be  worth  conquering  or,  being  conquered,  it  was  not 
worth  governing.  Surplus  wealth  was  not  adequate  to  the 
support  of  a  despotic  government  long  enough  to  change  local 
customs.  Federation  appeared  as  the  obvious  means  of  making 
liberty  more  secure  against  ambitious  and  warring  neighboring 
states.  Independent  Switzerland  came  to  be  early  recognized 
as  a  safeguard,  a  protection  to  adjacent  states.  The  friendship 
of  the  Swiss  as  the  best  fighters  in  Europe  became  worth  culti- 
vating.^ Neighboring  states  found  it  good  policy  even  to  con- 
tribute new  Cantons  to  the  Confederacy.  The  Congress  of 
Vienna  in  181 5  was  only  carrying  on  a  time-honored  policy 
when  it  added  the  last  three  Cantons  to  the  Confederacy  and 
made  the  whole  neutral  territory. 

The  growth  of  the  Swiss  Republic  resembles  in  some  respects 
that  of  the  United  States.  In  each  case  the  Union  was  formed 
out  of  preexisting  governments.  The  thirteen  States  of  the 
American  Union  had  had  a  prolonged  history  as  colonies,  and 
were  united  for  a  brief  period  of  confederation  before  they 
adopted  the  Constitution.  The  Swiss  cantons  had  a  much 
longer  history,  with  centuries  of  confederation  preceding  the 
adoption  of  the  Constitution  of  1848. 

Under  the  earlier  confederation,  policies  adopted  by  Diet  or 
representative  Assembly  and  accepted  by  the  Cantons  were 
executed  by  the  separate  Cantons.  This  feature  persists  in 
the  latest  constitution.  The  national  legislature  has  power  to 
make  laws  binding  upon  the  cantons  without  their  consent, 
yet  the  execution  of  the  statutes  is  still  left  to  the  cantons. 
Foreign  relations,  the  collections  of  customs,  postal  and  telegraph 
service,  and  a  few  other  lines  of  business,  are  administered  by 
federal  officers,  but  the  larger  body  of  federal  legislation  is 
administered  by  local  officials.  If  that  administration  is  not 
satisfactory  to  the  federal  authorities,  local  authorities  are 
admonished ;  and  if  they  persist  in  refusal  to  execute  the  laws, 
money  due  the  canton  is  withheld.  As  a  last  resort  soldiers 
are  sent  into  the  canton.  These  "  do  not  pillage,  burn,  or  kill, 
but  are  peaceably  quartered  there  at  the  cxi)cnse  of  the  canton, 
and  literally  eat  it  into  submission."  2 

'  Moses,  "  The  Federal  Government  of  Switzerland,"  pp.  ig-22. 

2  Lowell,  "Governments  and  Parties  in  Continental  Europe,"  Vol.  II,  p.  197. 


6l8  COMPAR.\TI\E   FREE   GOVERNMENT 

As  in  the  case  of  the  States  of  the  American  Union,  the 
cantons  remain  in  possession  of  "  all  the  rights  which  are  not 
delegated  to  the  federal  government  and  are  not  forbidden  to 
the  states."  ^  Still,  in  the  practical  working  out  of  this  princi- 
ple there  is  a  marked  difference  between  the  two  countries. 
The  fact  that  the  Cantons  execute  federal  laws  tends  to  obscure 
the  partition  of  powers  between  the  local  and  central  govern- 
ments. Cantons  readily  submit  to  an  expansion  of  federal 
legislative  rights,  while  they  retain  to  themselves  the  function 
of  administration.  And,  since  it  is  the  duty  of  the  Federal 
Executive  to  see  that  cantons  do  their  duty,  the  habit  of  looking 
to  the  central  government  for  guidance  and  admonition  ensues. 
Very  few  powers  arc  exercised  exclusively  by  either  govern- 
ment, while  the  concurrent  powers  are  numerous.  To  the 
federal  government  i)ertain  matters  of  education,  labor,  monop- 
olies, insurance,  highways,  civil  rights,  criminal  law,  and  many 
others,  which  in  the  United  States  arc  dealt  with  by  the  States, 
and  the  tendency  to  expand  the  field  of  federal  legislation  grows. 
In  191 2  a  complete  civil  code  for  the  entire  country  which  had 
been  fourteen  years  in  preparation  was  enacted.  A  criminal 
code  of  like  scope  is  being  prepared  by  experts.  These  civil 
and  criminal  codes,  although  enacted  by  the  national  legislature, 
will  nevertheless  be  administered  by  the  cantons. 

Before  the  adoption  of  the  Constitution  of  1874  a  prolonged 
debate  was  held  between  the  advocates  and  the  opjwnents  of 
centralized  government.  The  Constitution  of  1848  and  the 
revised  Constitution  iiuolved  a  compromise;  yet  the  marked 
tendency  in  Switzerland  is  towards  greater  centralization.  The 
Constitution  gives  to  the  national  legislature  supervision  over 
the  cantons  in  the  matter  of  amending  their  constitutions,  and 
no  amendment  is  valid  without  national  apiMoval.  Every 
change  in  the  constitution  of  a  canton  must  also  be  submitted 
for  a|)pr()val  to  the  voters  of  the  canton.  Federal  authorities 
may  enter  the  cantons  on  behalf  of  the  civil  rights  of  the  citizens, 
and  they  may  appear,  uillioiil  imitation,  to  ])reserve  order 
therein. 

At  no  lime  has  there  l)ccn  developed  any  ( Icarly  defined 
theory  as  to  the  relative  jjositions  of  the  two  governments: 
jjractical  considerations  determine  those  relations.     The  Swiss 

'  Chap.  I,  Art.  3,  Const. 


ORIGIN   UI'   THE   SWISS    GOVERNMENT  619 

know  nothing  about  "  implied  powers  "  of  the  Constitution. 
The  one  hundred  and  twenty-three  articles  in  the  document  fur- 
nish adequate  guidance  to  all  public  officers.  There  is  no  demand 
for  a  learned  expositor  of  their  meaning.  However,  a  Federal 
Tribunal  exists,  a  part  of  whose  duties  is  the  decision  of  cases  of 
conflict  between  authorities.  By  this  Court  acts  of  cantonal  legis- 
latures which  violate  the  constitution  either  of  the  canton  or  of 
the  Federal  government  may  be  held  invalid.^  But  an  entirely 
different  rule  holds  in  the  case  of  acts  of  the  national  legislature. 
The  Constitution  requires  the  court  to  give  effect  to  any  legis- 
lative act.  The  Federal  Assembly  is  itself  the  final  judge  as 
to  the  constitutionality  of  its  own  acts.  The  national  legis- 
lature is  the  authorized  custodian  of  the  entire  process  of  con- 
stitution-making, and  supervises  the  making  of  the  frame  of 
government  for  the  cantons.  If  the  two  Houses  are  agreed, 
constitutional  changes  for  the  Confederacy  are  enacted  by  the 
same  process  as  are  statutes.  But  constitutional  amendments 
do  not  become  valid  unless  they  are  sanctioned  by  a  majority 
of  the  people,  the  majorities  being  so  distributed  as  to  include 
a  majority  of  the  Cantons.  If  the  legislature  fails  to  provide 
an  amendment  to  the  constitution  which  the  people  require, 
a  petition  signed  by  50,000  voters  may  initiate  a  process  to 
secure  the  change.  By  various  methods  of  comparatively 
easy  amendment,  the  letter  of  the  Constitution  is  kept  in  har- 
mony with  the  policies  of  government,  and  political  energy  is 
not  wasted  on  account  of  defects  in  governmental  machinery. 
The  people  really  make  their  own  constitutions  in  both  canton 
and  Federation ;  and  by  peculiar  Swiss  processes  they  keep 
legislative  assemblies  in  such  close  touch  with  themselves  that 
those  bodies  are  truly  representative.  Rasping  conflicts  be- 
tween the  people  and  their  public  agents  are  thus  reduced  to  a 
minimum.  No  other  government  works  with  such  smoothness 
and  efficiency  as  does  that  of  the  Swiss  Republic. 

REFERENCES 

General  References  for  Switzerland. 

DODD.     Modern  Constitutions,  Vol.  II,  pp.  253  £f. 

'  In  that  case  the  law  is  not  nullified  but  it  becomes  the  duty  of  the  national 
executive  to  induce  the  canton  to  change  the  statutes.     See  below,  p.  630. 


620  COMPARATIVE   FREE    GOVERXIMENT 

LowKLL.     Governments  and  Parlies  in  ConlinenlcJ  Europe,  Vol.  II,  Chaps. 

XI-XIII. 
McCracken.     TIic  Rise  of  the  Siciss  Republic,  Book  \',  Chap.  X. 
Moses.     The  Federal  Governmenl  of  Sicitzcrland. 
OcG.     The  Governments  of  Europe,  Chaps.  XXII-XXIII. 
Seignobos.     a  Political  History  of  Contemporary  Europe,  \'o\.  I,  Chap.  IX. 
Vincent.     Government  in  Switzerland. 
Wilson.     The  State,  Chap.  VIII. 
Winchester.     The  Swiss  Republic,  Edition  1891,  Chaps.  II-IX. 


CHAPTER  LIII 

The  FniVME  of  Government 

At  no  time  has  serious  or  prolonged  dispute  arisen  as  to  the 
relation  of  the  Swiss  people  to  their  Executive  or  as  to  the  rela- 
tions of  the  three  departments  of  government  to  one  another; 
the  Executive  is  as  popular  and  as  fully  trusted  as  any  other 
part  of  the  government  and  it  is  the  great  harmonizer  and  unifier 
of  the  system.  The  little  Federation,  with  its  twenty-two  can- 
tons, some  with  aristocratic  history  and  traditions,  others  pro- 
foundly democratic  in  both ;  its  more  than  three  thousand  com- 
munes, of  endless  variety  and  puzzUng  complexity  in  their 
local  requirements ;  its  population  widely  diverse  in  origin,  in 
temperament,  tradition,  ideals,  and  aspirations,  is  nevertheless 
governed,  and  well  governed,  by  the  same  general  laws.  And 
these  laws  deal  with  such  intricate,  such  divisive  matters  as  a 
State  Church,  Popular  Education,  Capital  and  Labor,  Govern- 
ment Monopoly  of  the  AlcohoUc  Liquor  Traffic,  and  Govern- 
ment Control  of  General  Utilities.  To  understand  how  this  is 
achieved  a  study  of  the  whole  frame  of  government  is  necessary. 

The  common  English  names  for  the  five  national  institutions 
of  Switzerland  often  cause  confusion  because  the  words  them- 
selves denote  nothing  distinctive.  The  attention  of  the  reader 
is  therefore  called  to  the  following  definitions :  Federal  Council 
{Conseil  federal,  Bundesrath),  the  national  executive  board 
of  seven  members,  one  of  whom  is  annually  chosen  President  of 
the  Swiss  Republic.  Federal  Assembly  (Assemblee  fcdcrale, 
Bundesversammlung),  the  national  legislature  in  joint  session 
of  the  two  houses.  As  a  united  body  it  has  a  few  distinctive 
duties.  Council  of  States  {Conseil  des  Etats,  Stdndcrath), 
the  upper  house  of  the  legislature,  or  the  Senate  of  forty-four 
members.  National  Council  (Conseil  national,  Nationalrath), 
the  lower  house  of  the  legislature  of  167  members,  elected  directly 
in  proportion  to  the  population.  Federal  Tribunal  {Tribunal 
federal,  Bundesgcricht),  the  Supreme  Court. 

621 


622  COMPAR.\TI\'E   FREE   GOVERNINIENT 

The  Executive.  — The  laws  of  Switzerland  are  executed  by  a 
hierarchy  of  Executive  Councils  or  committees.  In  the  com- 
munes the  town  meeting,  —  in  some  instances  the  voters  by 
ballot,  —  elects  a  communal  council,  consisting  usually  of  from 
five  to  nine  members.  This  council  is  responsible  for  communal 
administration.  In  the  cantons  councils  numbering  from  five 
to  thirteen  members  are  elected,  in  more  than  half  the  Cantons 
by  popular  vote,  in  the  others  by  the  legislature.  The  term  of 
ofl&ce  in  cantonal  and  communal  councils  varies  from  one  to 
five  years. 

Each  grade  in  the  series  of  executive  councils  may  share  in 
the  administration  of  most  of  the  laws.  Only  a  few  subjects  of 
federal  legislation  are  reserved  for  the  exclusive  control  of  the 
Federal  Council,  and  the  administration  of  certain  acts  of  the 
cantonal  legislatures  pertains  entirely  to  the  cantonal  Executive. 
It  is  always  in  order  also  for  the  higher  authorities  to  assist,  en- 
courage, or  administer,  in  respect  to  any  matter  deemed  to  be  of 
general  interest ;  and  it  is  the  duty  of  the  higher  authorities 
actively  to  interfere  in  case  of  violation  of  the  laws  of  the  canton 
or  of  the  Confederacy,  or  in  case  of  delinquency  in  the  e.xecution 
of  the  laws. 

The  Communes  adopt  numerous  by-laws  covering  a  wifle  range 
of  topics,  which  are  executed  \)y  the  communal  councils  or  other 
local  ofl&cials.  Upon  the  communes  rests  also  a  large  share  of 
responsibility  for  the  execution  of  the  general  statutes  of  Canton 
and  Federation.  In  the  administration  of  local  alTairs  the  exec- 
utive council  acts  as  a  body,  with  the  mayor  as  presiding  officer ; 
but  in  the  execution  of  the  more  general  laws  the  mayor  is  held 
individually  responsible.  This  is  the  one  instance  in  the  Swiss 
system  of  imjwrtant  individual  executive  responsibility.  The 
mayor  and  council  have  (jllkial  charge  of  the  town  meeting, 
although  the  members  of  the  meeting  have  a  nominal  right 
to  introduce  measures.  The  regular  order  is  to  refer  all  resolu- 
tions to  the  council.  The  meeting  simply  approves  or  rejects 
the  program  presented  by  the  council.  In  the  larger  communes 
the  communal  council  is  virtually  a  legislative  committee  pre- 
I)aring  by-laws  to  be  voted  upon  by  the  peojjle. 

The  Cantons  have  their  own  constitutions,  guaranteed  by  the 
Confederation,  anrl  they  exercise  extensive  powers  in  forming 
and  carrying  out    their  cnvn  governments.     Each  has  a  single- 


THE   FRAME  OF   GOVERNMENT  623 

chambered  legislative  council  in  some  of  which  the  executive 
councilors  are  included  as  voting  members.  To  all  of  them  the 
executive  officers  have  free  access.  They  work  with  the  can- 
tonal legislators  in  all  matters  of  legislation  and  finance.  The 
chairman,  or  president,  of  the  executive  council  holds  a  position 
of  dignity  and  honor  in  the  canton,  although  as  an  officer  he  is 
merely  a  member  of  a  governing  board,  the  council  as  a  body 
being  responsible  for  the  government.  In  certain  cantons 
curious  survivals  of  ancient  forms  of  independent,  democratic 
government  are  found.  Such  is  the  Lands gemeinde,  a  primitive 
mass  meeting  of  all  citizens.  ^ 

The  Federal  Council  of  seven  members  is  elected  at  the  first 
session  of  each  new  Federal  Assembly  to  serve  for  three  years. 
Its  members  are  chosen  rather  as  men  of  business  ability  than  as 
leaders  of  a  party,  and  are  not  expected  to  control  governmental 
policy.  A  restricted  area  in  federal  legislation  is  reserved  to  the 
Federal  Council,  but  its  legislative  duties  are  chiefly  advisory 
or  such  as  pertain  to  the  conducting  of  the  administration.  It 
mediates  between  diverse  political  views,  interests,  and  opinions. 
No  one  of  its  members  is  authorized  to  propose  any  legislation 
in  the  Assembly  save  by  vote  of  his  colleagues.  Each  Coun- 
cilor, including  the  Chairman  of  the  Federal  Council,  who  is 
also  the  President  of  the  Swiss  Confederation,  presides  over  one 
of  the  seven  departments  of  administration,  and,  at  the  same  time, 
shares  in  the  joint  responsibility  for  the  acts  of  the  Council. 

The  business  of  the  Federal  Council  is  divided  into  seven 
departments,  one  department  being  assigned  to  each  member. 
They  are :  Foreign  Affairs ;  Interior ;  Justice  and  Police ; 
Military  Affairs ;  Imports  and  Finance ;  Posts  and  Railways ; 
and  Commerce,  Industry,  and  Agriculture.  Since,  as  we  have 
seen,  the  members  have  practically  a  life  tenure,  the  heads  of  the 
separate  departments  are  correspondingly  permanent.  They 
naturally  acquire  much  skill  and  specialized  experience,  yet  the 
Constitution  fixes  full  responsibility  for  every  act  upon  the  en- 
tire council.  In  practice  this  means  that  every  official  act  shall 
have  the  support  of  a  majority  of  the  Councilors.  There  is 
nothing  to  force  an  artificial  unanimity,  such  as  prevails  in  a 
cabinet  government.     The  Federal  Council  presents  a  bill  to  the 

1  Freeman,  "  The  Growth  of  the  English  Constitution."   Fourth  Edition    1884, 
Chap.  I  ;  McCracken,  "  Teutonic  Switzerland,"  Chap.  XI. 


624  CO]MPARATT\T>   FREE   GOVERNMENT 

Legislature  for  its  approval,  yet  in  the  legislative  Houses  indi- 
vidual members  of  the  Council  may  appear-as  opponents  of  the 
same  measure.  The  debate  begun  in  the  Council  is  thus  con- 
tinued in  the  Legislature.  Even  a  member  of  the  Council  who 
has  voted  in  favor  of  presenting  a  certain  measure  to  the  Na- 
tional Assembly  for  action  may  appear  in  the  two  Houses  as 
opposed  to  its  passage.  This  means  that  he  believes  the  Houses 
ought  to  have  a  chance  to  act  upon  the  bill,  while  in  his  own 
judgment  it  would  be  better  not  to  adopt  it.  Again,  it  may 
occur  that  the  Federal  Council,  being  entirely  united  in  the  ad- 
vocacy of  a  bill,  may  use  all  possible  influence  in  favor  of  its  pas- 
sage, and  approval  may  still  be  withheld  by  one  House  or  by 
both.  This  would  imply  no  censure  or  lack  of  confidence.  It 
would  involve  no  cabinet  crisis.  No  one  would  think  of  resign- 
ing and  the  same  Legislature  would  continue  to  reelect  the  Coun- 
cil whose  pet  measure  it  had  rejected.  The  Executive  has  no 
need  of  the  support  of  the  Legislature  in  the  performance  of  its 
distinctive  duties  and  the  Legislature  is  expected  to  exercise 
entire  freedom  in  acting  upon  executive  recommendations. 
Mutual  independence  prevents  friction. 

One  of  the  seven  heads  of  the  executive  departments  is  des- 
ignated each  year  by  the  Federal  Assembly  to  serve  as  Presi- 
dent of  the  Republic,  and  another  is  chosen  as  Vice  President  of 
the  Council.  It  has  become  the  established  custom  to  promote 
the  Vice  President  to  the  Presidency  each  successive  year.  As 
neither  of  these  officers  is  permitted  to  succeed  himself  these 
honors  become  distributed  to  all  the  members. 

The  President  of  the  Republic,  being  head  of  a  department  and 
sui)ervisor  of  the  work  of  the  other  departments,  is  the  ceremonial 
head  of  the  state  and,  as  such,  has  a  few  special  duties,  —  the 
receiving  of  representatives  of  foreign  governments,  for  example  ; 
but  he  does  not  possess  any  more  power  in  the  administration 
than  do  the  other  Councilors.  Swit/ATJand  has  never  had  a 
King  nor  even  a  President  of  the  Ripublic  whose  i)osition  cor- 
responded to  lliiil  of  the  President  of  the  United  States.  The 
Swiss  Cantons  have  had  no  governors  nor  chief  magistrates.  All 
executive  power  rests  in  the  hands  of  the  councils  or  committees 
chosen  directly  or  indirectly  by  universal  sudfrage.  The  one 
apparent  exception  to  this  rule  is  that  of  the  mayor  of  a  com- 
mune, previously  mentioned,  and  this  arises  from  the  double 


THE   FRAME  OF   GOVERNMENT  625 

function  of  the  commune  as  a  local  government  area  and  as 
administrator  of  cantonal  and  federal  law. 

Special  reasons  may  be  pointed  out  as  contributing  to  the  re- 
markable harmonizing,  unifying  results,  noted  in  the  working 
of  the  Swiss  form  of  government.  Its  legal  system  is  based  upon 
Roman  Law,  which  maintains  a  sharp  distinction  between  pri- 
vate and  public  law.  The  courts  of  the  cantons  administer 
private  law,  but  have  no  jurisdiction  over  ofiicial  misconduct. 
No  special  tribunals  have  been  set  up  to  administer  public  law, 
as  has  been  done  in  France,  a  large  part  of  such  service  being 
rendered  by  the  series  of  executive  councils.  Appeals  are  made 
to  the  cantonal  councils  to  correct  abuses  in  local  areas.  From 
the  cantons  cases  are  carried  to  the  Federal  Council.  The 
jurisdiction  of  the  Federal  Tribunal  has  been  extended  to  in- 
clude a  part  of  the  field  of  public  law,  although  a  considerable 
portion  of  such  business  yet  remains  with  the  executive  councils. 
In  either  case  the  highest  court  of  appeal  is  the  National  Assem- 
bly, a  joint  session  of  the  two  houses  of  the  Federal  Legislature. 
That  body  may  set  aside  a  decision  of  the  Supreme  Court  or  of 
the  Federal  Council,  in  judging  a  case  of  ofiicial  misconduct. 

Swiss  statutes  are  enacted  in  the  form  of  brief  indications  of 
the  will  of  the  state,  leaving  the  executive  to  furnish  supple- 
mentary details.  In  France  the  Council  of  Ministers  issues 
general  orders  explaining  the  acts  of  Legislature.  The  Swiss 
Council  publishes  few  general  orders,  but  it  exercises  very  wide 
executive  discretion  in  adapting  general  measures  to  local  con- 
ditions. Many  acts  of  the  cantons  and  the  communes  are  of 
the  nature  of  supplemental  legislation  or  by-laws  relating  to  the 
enforcement  of  federal  statutes. 

The  unifying  influence  of  the  Executive  is  further  seen  in  its 
relation  to  the  Legislature.  In  both  communes  and  cantons 
the  mingling  of  the  two  functions  is  constant.  Executive  offi- 
cers enter  freely  into  the  legislative  debates,  although  they  may 
have  no  votes.  A  similar  close  relation  subsists  between  the 
Federal  Council  and  the  houses  of  the  National  Assembly.  The 
Councilors  take  part  in  the  proceedings  of  the  legislature,  though 
they  are  not  members  of  it.  They  prejjare  bills  to  be  acted 
upon  by  the  Houses,  they  are  consulted  in  the  preparation  of 
measures,  and  bills  are  referred  to  the  Council  for  suggestions 
and  advice.     The  Swiss  Executive,  in  fact,  performs  important 


626  COMPAR.\TTVE  FREE   GOVERNMENT 

services  to  the  state  in  each  of  the  three  departments  of  govern- 
ment —  the  Executive,  the  legislative,  and  the  judicial. 

The  Legislature.  —  The  Swiss  Executive  is  always,  in  a  sense, 
subordinate  to  the  Legislature.  Executive  councils  are,  one  and 
all,  mere  committees  of  the  Legislature,  whether  or  not  they  are 
appointed  by  it.  When  they  assist  in  making  laws  they  act  as 
an  aid  to  the  Legislature ;  when  they  issue  general  orders  they 
do  it  to  supplement  and  enforce  a  statute,  not  to  override  or 
change  the  law.  When  the  Executive  Council  sits  as  a  court  to 
decide  issues  of  public  law,  its  decisions  are  subject  to  reversal 
by  the  Legislature.  No  executive  body  serves  as  a  check  upon 
the  Legislature  or  is  endowed  with  independent  powers  by  which 
it  may  thwart  the  will  of  the  Legislature.  This  is  the  funda- 
mental distinction  between  the  Swiss  government  and  that  of 
the  United  States. 

The  legislature  of  the  commune  is  an  assembly  of  all  the  male 
citizens  over  twenty  years  of  age.  Two  of  the  cantons  and  four 
half  cantons  also  still  maintain  the  ancient  Landsgemeiiide,  or 
mass  meeting  of  all  the  voters,  as  the  supreme  legislative  body. 
In  these  cantons  the  legislative  councils  hold  a  distinctly  subor- 
dinate place.  In  more  than  half  of  the  others  all  acts  of  the 
legislative  councils  go  to  the  voters  for  approval.  The  rest, 
with  possibly  one  or  two  exceptions,  provide  for  a  popular  veto 
on  legislative  acts.  Legislation  in  the  cantons  is  therefore  an 
act  of  the  entire  citizenship.  The  legislature  is  supreme  because 
the  people  rule.  But  the  legislative  assemblies,  and  the  execu- 
tive councils,  and  the  judiciary  are,  in  a  sense,  equal  and  coordi- 
nate, all  being  subject  to  orders  from  the  body  politic. 

It  is  one  of  the  curiosities  of  constitution  making  that  Swiss 
cantons  continue  to  repeat  the  form  of  words  taken  from  the  con- 
stitutions of  American  States  distributing  the  powers  of  govern- 
ment to  the  traditional  three  departments.  Not  unnaturally 
these  words  ai)peared  in  the  early  constitutions,  since  in  184S  un- 
certainty still  existed  as  to  the  fmal  distribution  of  governmental 
powers.  There  was  much  copying  from  the  United  States,  and 
it  was  natural  that  statesmen  should  expect  political  develop- 
ment along  American  lines.  Representative  assemblies  had  been 
little  inlluenced  by  the  referendum  ;  the  popular  initiative  had 
been  adopted  in  only  one  canton.'     Even  in  the  United  States 

*  Vaud  adopted  it  in  1845.     Lloyd,  "  A  Sovereign  People,"  p.  66. 


THE   FRAME  OF   GOVERNMENT  627 

the  theory  of  independent  coordinate  powers  has  been  since  the 
middle  of  the  century  progressively  discredited.  In  Switzerland, 
especially  in  the  cantons,  the  theory  has  no  apparent  influence 
on  actual  policies,  though  the  form  of  words  is  repeated  as  a  harm- 
less anachronism. 

When  the  Constitution  of  1S48  was  adopted  there  was  nowhere 
in  Switzerland  a  bicameral  legislative  assembly.  Cantons  had 
always  used  the  single  chamber,  and  the  early  union  also  pos- 
sessed an  Assembly  of  one  House,  in  which  all  the  cantons,  large 
and  small,  had  equal  voice.  One  reason  for  adopting  the  double 
chamber  for  the  new  Federal  Legislature  was  the  facility  which 
it  offered  for  effecting  a  compromise  between  large  and  small 
cantons.  The  condition  was  almost  identical  with  that  which 
prevailed  when  the  thirteen  American  States  attempted  to  form 
"  a  more  perfect  Union."  The  Swiss,  following  the  American 
example,  conceded  equal  representation  of  the  cantons  in  one 
house  and  representation  according  to  population  in  the  other. 

The  Swiss  upper  House,  usually  called  the  Council  of  States,  is 
made  up  of  44  members,  two  from  each  of  the  twenty-two  can- 
tons. Three  of  the  twenty-two  cantons  are  divided,  making, 
for  all  local  purposes,  each  half  an  independent  state.  Practi- 
cally the  cantons  number  twenty-five,  though  six  of  them  count 
as  only  half  cantons  in  national  representation.  Each  of  the 
cantons  elects  its  members  of  the  Council  of  States  as  it  pleases, 
pays  them  as  it  chooses,  and  determines  their  term  of  office. 
Naturally  the  conditions  of  membership  vary.  There  is  a  grow- 
ing tendency  to  elect  by  popular  vote  and  to  make  the  term  three 
years  to  coincide  with  the  term  of  membership  in  the  National 
Council. 

The  National  Council  is  composed  of  representatives  from  the 
cantons  apportioned  according  to  population,  —  one  member 
for  each  20,000  inhabitants,  and  an  additional  member  for  frac- 
tions of  that  number  above  10,000.  They  are  elected  by  uni- 
versal manhood  suffrage.  All  citizens  except  clergymen  are  eli- 
gible. The  election  is  from  districts  determined  by  the  Fed- 
eral Legislature  ;  but  a  district  may  not  include  parts  of  two  can- 
tons. No  general  rule  has  been  adopted  as  to  the  population  of 
districts.  Some  districts  elect  one  member,  others  five.  A  cen- 
sus is  taken  every  ten  years  for  the  apportionment  of  members. 
That  of  igio  gave  to  the  House  a  total  of  167  members.     Their 


628  COMPARATIVE    FREE   GOVERNMENT 

term  of  office  is  three  years,  and  their  salaries  are  paid  from  Fed- 
eral appropriations.  In  respect  to  general  powers  and  duties 
the  two  Houses  of  the  Assembly  hold  positions  of  exact  equality. 
Measures  of  legislation  and  of  finance  may  originate  in  either 
house.  In  earlier  times  the  smaller  House  presented  superior 
attractions ;  but  with  the  advent  of  democracy  preponderat- 
ing influence  passed  to  the  larger  assembly.  Members  of  the 
Federal  Council  are  more  likely  to  be  chosen  from  the  National 
Council  than  from  the  Council  of  States. 

The  Judiciary.  —  The  Federal  Tribunal  consists  of  a  single 
court  of  fourteen  members,  appointed  for  terms  of  six  years  by 
the  Federal  Assembly.  This  court  has  a  limited  original  juris- 
diction both  civil  and  criminal.  Civil  jurisdiction  extends  to 
cases  between  cantons,  between  cantons  and  individuals  or  cor- 
porations, and  between  cantons  or  individuals  and  the  Federal 
government.  Criminal  jurisdiction  covers  cases  of  treason, 
violations  of  international  law,  and  crimes  which  threaten  serious 
disturbance  of  public  order.  The  Federal  Tribunal  is  not  a  high 
court  of  appeal  for  the  cantons,  although  a  limited  class  of  cases 
may  be  thus  appealed.  The  jurisdiction  of  the  Court  is  depend- 
ent upon  federal  legislation  and  has  been  extended  to  cases  of 
public  law  involving  conflicts  between  authorities  and  official 
abuses  of  the  rights  of  citizens.  There  is  final  appeal  in  matters 
of  administrative  jurisdiction  to  the  Federal  Assembly. 

Each  canton  has  its  own  distinct  judicial  system,  at  the  base 
of  which  stands  the  ever  present  Justice  of  the  Peace.  Arbitra- 
tion fills  a  large  place  in  the  duties  of  the  local  justice.  His 
chief  business  is  to  forestall  and  prevent  litigation.  Some  of  the 
cantons  even  require  that  arbitration  shall  be  a  prerequisite  in 
every  trial  of  disputed  rights. 

Between  the  Justice  of  the  Peace  and  llic  Supreme  Court  of 
the  canton  there  are  usually  intermediate  district  courts.  Sei)a- 
ratc  courts  are  provided  for  cix-il  and  criminal  causes.  Several 
Justices  are  usually  engaged  in  a  Irial.  Appeals  may  be  taken 
to  the  Supreme  Court  of  the  canton,  whose  Justices  are  in  most 
cases  appointed  by  the  legislature;  the  others  are  elected  by 
popular  vote.  These  courts  administer  Federal  as  well  as  can- 
tonal laws  and  in  most  instances  there  is  no  appeal  (o  the  Federal 
Tribunal. 


THE   FRAME   OF   GOVERNMENT  629 

The  Swiss  Judiciary  resembles  that  of  France  in  that  the 
Roman  system  of  distinguishing  between  private  and  public 
law  is  maintained  ;  yet  there  are  marked  contrasts  in  the  methods 
of  development.  Roman  law  had  little  influence  over  the 
peoples  in  the  fastnesses  of  the  Alps,  while  southern  France 
became  thoroughly  Romanized.  The  decline  of  feudal  rule  in 
the  eleventh  century  was  accompanied  in  France  by  a  revival  of 
Roman  law,  and  with  the  advent  of  the  great  Revolution  the  laws 
were  codified  and  adapted  to  modern  needs.  All  this  is  foreign 
to  the  Swiss  experience.  With  legislature  and  executive  in  com- 
plete accord  in  the  communes  and  cantons  there  was  little  need 
of  a  distinct  judiciary.  As  courts  were  established  they  followed 
the  French,  or  Roman  order  of  limiting  the  legal  sphere  to  the 
maintenance  of  private  rights.  The  French  system  was  a  crea- 
tion of  the  Revolution  and  the  Napoleonic  era.  It  emanated 
from  the  Central  Government  and  large  provision  was  made  for 
appeals  to  the  higher  courts. 

In  Switzerland  an  independent  judiciary  arose  in  each  of  the 
Cantons.  So  devoted  were  the  people  to  their  own  local  systems 
that  when  a  Federal  Tribunal  was  called  into  existence  in  1848, 
the  judiciaries  of  the  cantons  were  left  intact,  and  the  jurisdic- 
tion of  the  new  tribunal  was  restricted  to  intercantonal  rights. 
Even  Federal  laws  were  adjudicated  by  the  cantonal  courts  with 
no  appeal  to  the  federal  court  unless  some  intercantonal  right 
was  involved.  One  of  the  serious  problems  of  the  centralizing 
Swiss  democracy  was  how  to  secure  harmony  among  the  nu- 
merous independent  judicial  systems.  In  recent  years,  the  solu- 
tion has  been  sought  by  extending  both  the  original  and  appellate 
jurisdiction  of  the  Federal  Tribunal  and  by  the  enactment  of 
carefully  prepared  civil,  criminal,  and  commercial  codes,  adapted 
to  the  needs  of  the  entire  Republic. 

Thus  far  the  Swiss  exhibit  no  tendency  to  follow  the  lead  of 
the  French  in  creating  administrative  tribunals  to  administer 
public  law.  The  settlement  of  controversies  involving  public 
officers  is  mainly  retained  in  the  hands  of  the  executive  councils 
and  the  legislature.  Yet  the  Federal  Tribunal  has  been  em- 
powered to  make  investigation  and  to  decide  questions  of  right 
in  that  domain.  This  is  an  apparent  exception  to  the  rule  in 
Roman  Law  countries  that  ordinary  courts  shall  not  administer 
public  law.     It  is,  rather,  an  instance  of  the  use  of  the  same 


630  COMPARATI\'E  FREE   GOVERNMENT 

judges  in  the  two  separate  capacities.  As  an  administrative 
court  they  follow  a  separate  procedure. 

The  federated  system  with  written  constitutions  creates  a 
condition  in  which  we  might  expect  to  find  a  hierarchy  of  laws, 
as  in  the  United  States,  and  progressive  gradation  of  authority 
does  indeed  exist.  Communes  are  subject  to  cantons  and  can- 
tons to  the  Confederation.  But  nowhere  are  the  courts  empow- 
ered to  nullify  a  statute  either  of  the  canton  or  of  the  Federal 
Legislature.  Swiss  Constitutions  have  no  higher  authority 
than  statutes.  If  Cantons  enact  laws  which  traverse  federal 
authority,  the  issue  is  joined  between  the  Federal  Council  and  the 
cantonal  legislature,  not  between  the  cantonal  statute  and  the 
Federal  Constitution  in  a  court  of  law.  It  is  the  duty  of  the 
P'ederal  Council  to  induce  the  cantonal  legislature  to  change  its 
conduct.  If  the  case  is  referred  to  the  Federal  Tribunal  that 
court  proceeds,  not  with  the  cantonal  statute  to  determine 
whether  it  is  good  law,  but  to  investigate  the  question  at  issue 
between  the  federal  executive  and  the  cantonal  legislature  and 
to  assist  the  executive  in  discovering  rules  for  harmonizing 
authorities.  The  real  decision  still  rests  with  the  federal  exec- 
utive or,  finally,  with  the  federal  legislature.  There  is  there- 
fore no  gradation  of  laws,  as  such,  but  a  gradation  of  admin- 
istrative and  legislative  authorities.  The  rule  of  the  Federal 
Constitution  requiring  the  courts  to  administer  the  statutes, 
even  though  they  are  in  apparent  conflict  with  that  constitution, 
is  applied  to  cantonal  statutes  as  well  as  others.  If  the 
statutes  are  wrong,  they  are  to  be  altered,  not  to  be  inter- 
preted out  of  existence  by  the  judiciary. 

Switzerland  and  the  United  States  represent  extreme  develop- 
ments of  the  two  systems  of  law.  In  the  Anglo-Saxon  world 
the  judiciary  has  been  used  both  as  a  bulwark  for  liberty  and  as 
an  agency  for  repression.  For  centuries  the  high  courts  were 
the  most  reliable  tool  for  the  support  of  despotic  power.  The 
judiciary  has  always  held  the  central  position  between  contend- 
ing forces  of  liberty  and  reaction,  or  conservatism.  Both  sides 
lay  claim  to  judicial  sup[)ort ;  both  have  contributed  to  the  ex- 
altation of  the  courts.  In  England,  this  led  to  the  subordina- 
tion of  the  Executive  to  the  courts  ;  in  America  the  courts  retain 
all  of  their  accumulated  powers  over  the  Executive  and,  by 
means  of  a  hierarchy  of  laws,  they  have,  to  a  large  extent,  subor- 


THE   FRAME   OF   GOVERNMENT  631 

dinated  the  legislatures  as  well.  In  France  the  Roman  law  with 
the  magistrates  to  enforce  it  has  been  an  aid  to  liberty.  The 
triumph  of  liberty  has  tended  to  emphasize  the  importance  of 
the  judiciary.  In  Switzerland  there  has  been  no  sustained  des- 
potism as  in  France,  no  prolonged  conflict  between  classes  as 
in  England,  no  gradation  of  laws  as  in  the  United  States ;  so 
there  has  been  little  use  for  a  judiciary.  Nevertheless  more 
recent  democracy  is  conceding  to  the  courts  of  law  a  modest 
and  dignified,  but  subordinate  position  in  the  government. 

REFERENCES 
(See  Chap.  LII.) 


CHAPTER  LIV 

The  Working  of  the  System 

Switzerland  has  passed  beyond  the  stage  of  belligerent 
democracy  into  that  of  assured  popular  rule.  The  transition  is 
marked  in  the  Constitution  of  1874.  The  advent  of  assured 
democracy  is  indicated  by  the  disappearance  of  checks  and 
balances.  The  belligerent  democrat  naturally  looks  upon  the 
referendum  as  a  check  upon  the  representative  assembly ;  but 
this  idea  is  being  eliminated.  The  object  of  the  Assembly  is 
to  discover  and  express  the  wishes  of  the  body  politic.  The 
referendum  aids  the  representatives  in  the  discovery  of  the 
general  will  and  enables  them  to  act  with  greater  assurance. 
Once  accept  the  princij)le  that  the  legislative  assembly  is  the 
servant  and  not  the  ruler  of  the  people,  and  the  so-called  popular 
veto  becomes  not  a  limitation  upon,  but  a  guide  to  its  course.  It 
is  the  business  of  the  Assembly  to  discover  in  advance  the  will 
of  the  state.  Yet  in  case  of  doubt  the  legislature  has  a  free  hand, 
because  if  a  mistake  is  made,  it  may  be  immediately  corrected. 
In  the  cantons,  where  the  popular  initiative  prevails,  legislative 
assemblies  have  an  additional  guiding  agency.  By  means  of  the 
initiative  the  l)ody  politic  may  secure  the  right  to  vote  on  a 
statute  which  the  legislature  has  failed  to  enact.  It  is  note- 
worthy that  with  the  continuous  growth  of  democratic  conscious- 
ness the  popular  initiative  has  not  been  extended  to  federal  legis- 
lation. The  ])e()ple  may,  by  j)tlilioii  of  50,000  voters,  secure 
action  upon  the  amendment  of  the  Federal  Constitution,  but 
they  may  not  thus  initiate  a  statutory  change.  This  is  ex- 
plained by  reference  to  the  fact  iliat  the  Federal  Council  is  ade- 
quately responsive  to  [)()pular  wishes.  As  representative 
democracy  approaches  perfection  there  will  be  less  demand  for 
cither  the  initiative  or  the  referendum. 

Cooperation  Replacing  Checks  and  Balances.  —  Tiie  two 
houses  of  the  Federal  Assembly  with  their  exact  equality  of 

632 


THE  WORKING   OF   THE   SYSTEM  633 

function  naturally  suggest  a  check  of  the  one  upon  the  other, 
a  safeguard  against  hasty  legislation.  Such  was  the  original 
intention.  The  principle  of  artificial  checks  was  recognized  and 
approved  in  1848,  but  the  spirit  of  cooperation  has  always  char- 
acterized the  relations  of  the  Houses.  A  presiding  officer  is 
chosen  by  each  house  from  among  its  members.  A  Chancellor 
is  elected  by  the  joint  session  of  the  two  Houses,  who  serves  as 
a  custodian  of  state  records,  and,  with  an  assistant,  keeps  the 
minutes  of  the  two  Houses.  He  is  also  Clerk  of  the  Federal 
Council,  though  not  a  member  of  it.  The  Presidents  of  the  two 
Houses  with  the  Chancellor  and  the  Federal  Council  act  as  a 
steering  Committee  for  both  Houses.  It  is  the  duty  of  these 
officers  to  have  business  prepared  for  the  opening  of  each 
session.  Through  the  Chancellor  they  are  informed  as  to  the 
exact  condition  of  the  unfinished  business  of  the  previous  session. 

The  Federal  Council  is  in  continuous  session.  It  prepares 
bills  on  measures  referred  to  it  by  the  legislature ;  it  receives 
petitions  from  all  sources  for  new  legislation,  and  prepares  bills 
of  its  own  to  supplement  defects  revealed  by  its  experience  as 
Chief  Executive  for  the  Republic.  The  Chancellor,  as  clerk 
both  of  the  Federal  Council  and  of  the  legislature,  keeps  a  record 
of  all  these  measures.  The  Presidents  of  the  two  houses  meet 
and  agree  upon  the  measures  to  be  first  acted  upon  by  each  house. 
Instead  of  serving  as  checks  and  hindrances,  the  houses  coop- 
erate to  a  common  end  under  the  guidance  of  a  single  committee. 
Thus  directed  two  sessions  of  about  four  weeks  each  suffice  for 
transacting  the  annual  business. 

The  Swiss  system  actually  attains  among  the  representatives 
of  the  three  departments  of  government  a  condition  of  equality 
not  found  in  countries  where  checks  and  balances  prevail. 
The  Legislature  is,  in  a  sense,  supreme  because  of  the  nature 
of  its  business.  But  with  the  laws  emanating  directly  from  the 
body  politic,  legislative  assemblies  take  their  place  beside  the 
executive  and  the  judiciary  as  coordinate  guardians  of  the  com- 
monweal. The  three  distinct  functions  of  government  are 
clearly  recognized.  Each  line  of  business  is  in  the  hands  of  sepa- 
rate officers,  and  in  the  performance  of  their  peculiar  duties  they 
act  independently  :  one  department  does  not  dictate  to  the  other. 
Authority  is  derived  from  the  same  source  and  there  is  a  marked 
uniformity  in  the  machinery  provided  for  its  exercise. 


634  COMPARATIVE  FREE   GOVERNMENT 

The  judiciary  is  made  up  of  groups  of  justices,  each  one  elected 
for  a  brief  term  of  ofSce.  In  courts  of  higher  rank  than  the  jus- 
tice court  no  single  judge  is  permitted  to  decide  a  case  at  law; 
a  bench  of  justices  renders  the  decision.  In  matters  of  private 
law  the  decision  of  a  single  court  is  in  most  cases  final.  Neither 
the  executive  nor  the  legislative  assembly  interferes  with  ordi- 
nary courts,  nor  do  the  courts  interfere  with  the  coordinate 
branches  of  government. 

Besides  the  distinctive  duties  exercised  independently  by  the 
departments,  there  are  many  duties  not  distinctive,  which  are 
exercised  cooperatively.  It  is  not  necessary  to  describe  farther 
the  continuous  cooperation  between  Legislature  and  Executive. 
They  work  together,  although  they  remain  free  and  independent 
in  action.  The  judiciary  also  has  its  cooperative  duties.  The 
work  of  the  judges  in  ])romoting  arbitration  and  preventing  liti- 
gation is  not  essentially  different  from  that  of  administrative 
officers  who  strive  in  much  the  same  way  to  secure  compliance 
with  the  laws.  The  courts  also  assist  in  legislation.  In  some 
cantons  they  are  required  to  report  to  the  legislature,  specify- 
ing needed  changes  in  the  laws,  and  this  service  is  everywhere 
permissible.  Moreover,  in  the  matter  of  administering  public 
law  and  deciding  cases  involving  conflicts  of  authority  all  the 
three  departments  share.  Various  executive  councils  continu- 
ally strive  to  solve  all  such  difficulties.  A  limited  number  of 
problems,  whose  solution  transcends  the  wisdom  of  the  execu- 
tive councils,  may  be  brought  before  the  National  Tribunal 
for  solution ;  but  a  joint  session  of  the  two  houses  of  the  Legis- 
lature is  the  final  court  of  appeal  in  questions  of  public  law. 

Salaries.  —  The  highest  salary  ])aid  to  any  public  officer  is 
that  of  the  President  of  the  Republic,  13,000  francs  ($2600). 
His  associates  in  the  Federal  Council  receive  12,000  francs,  and 
the  members  of  the  Federal  Tribunal  receive  the  same.  Mem- 
bers of  the  National  Council  have  a  small  daily  compensa- 
tion while  in  attendance  at  legislative  sessions.  Much  of 
the  service  in  communes  and  cantons  is  gratuitous.  Office- 
holding  is  honorable,  but  nowhere  remunerative.  The  spoils 
system  is  forestalled  by  taking  care  that  there  be  no  spoils. 
Notwithstanding  meager  ( ompcnsation  and  short  terms  of  office, 
the  stale  in  all  its  flepartmciits  secures  the  continuous  services 
of  (itizcns  Ik-sI  liltid  fur  office.     The  Federal  Council  may  be 


THE   WORKING   OF   THE   SYSTEM  635 

used  to  illustrate  the  general  custom  as  to  permanency  in  the 
service.  Its  members  are  elected  in  a  body,  once  in  three  years, 
by  the  Federal  Assembly,  and  they  are  continuously  reelected 
as  long  as  they  live  or  are  willing  to  serve.  The  average  period 
is  more  than  ten  years ;  the  maximum  period,  more  than  thirty 
years.  In  some  of  the  communes  and  cantons  a  sort  of  aristoc- 
racy of  public  service  is  discernible ;  a  promising  son  of  a  faith- 
ful official  is  often  chosen  to  succeed  his  father.  The  public 
officer  makes  sacrifices  for  the  good  of  the  community.  For  this 
he  is  held  in  high  esteem  and  receives  a  vote  of  confidence  at 
each  election.  Frequent  elections  promote  stability  and  per- 
manence in  office  by  keeping  alive  the  conscious  appreciation  of 
service  rendered.  Such  conditions  make  exciting  contests  for 
office  impossible.  The  personal  element  is  eliminated  from  elec- 
tions. Political  interest  is  centered  in  the  issues  involved,  not 
in  parties  or  party  leaders. 

Political  Parties.  —  Switzerland,  like  all  free  states,  has  its 
distinct  party  system.  Since  there  are  no  spoils  of  office  and  no 
positions  which  admit  of  personal  leadership,  parties  are  kept  in 
close  relation  to,  political  issues.  The  relation  of  the  cantons 
to  the  central  government  is  the  one  issue  that  goes  farther  than 
any  other  in  accounting  for  the  formation  of  parties. 

Prior  to  1848  there  was  prolonged  debate  over  the  question 
of  a  stronger  union.  The  Constitution  was  a  compromise ;  yet 
it  marked  the  triumph  of  the  radical  party  which  favored  cen- 
tralization. A  period  of  party  confusion  followed  on  account  of 
the  injection  of  new  issues.  Private  or  public  ownership  of  rail- 
ways was  for  many  years  a  divisive  question.  Threatened  war 
with  France  over  the  seizing  of  Savoy  called  forth  a  new  align- 
ment. Race  jealousy  between  Germans,  French,  and  Italians 
was  for  a  brief  period  a  disturbing  element.  The  division 
between  Catholics  and  Protestants  over  questions  of  education 
and  the  support  of  the  church  was  a  factor  of  importance.  The 
general  state  of  party  disarrangement  terminated  in  a  ten  years' 
agitation  for  a  new  constitution.  The  Constitution  of  1874 
provides  for  a  still  more  centralized  government  and  gives  to  the 
people  direct  control  over  constitutional  amendments  and  a 
negative  veto  on  legislation.  Under  the  new  order  political 
parties  assume  a  permanent  position  and  for  forty  years  have 
incurred  little  change. 


636  COMPARAT]\"E   FREE   GOAERNMENT 

After  the  year  1867  the  Catholics  became  consolidated  into  a 
party  of  the  Right,  resisting  farther  centralization  of  the  state. 
The  Radical  party,  or  the  party  of  the  Left,  favors  centraliza- 
tion and  the  use  of  federal  authority  to  support  secular  educa- 
tion. The  Liberal  party,  the  party  of  the  Center,  is  mainly 
composed  of  bankers  and  manufacturers.  They  are  Protestant, 
favoring  secular  education,  and  they  turned  the  scale  for  the 
Radicals  in  the  adoption  of  the  new  constitution.  They  are, 
however,  less  disposed  to  extend  the  field  of  state  control  over 
industries  than  are  the  Radicals. 

The  Swiss  are  a  people  with  great  organizing  experience, 
though  they  do  not  apply  that  ability  to  their  political  parties. 
The  Catholics  have  the  best  organization,  but  even  they  do  not 
work  together  as  a  united  party.  Among  Radicals  and  Liberals 
are  numerous  subflivisions.  At  the  extreme  left  are  a  few  pro- 
nounced Socialists.  Next  lo  these  are  Social  Democrats,  who 
make  up  the  more  active  section  of  the  Radical  party.  The 
parties  have  no  duties  which  call  for  close  organization.  In 
ofl5ce  they  do  not  govern.  Legislative  party  members  do  not 
pretend  to  vote  as  a  unit.  If  a  caucus  is  held,  its  object  is  en- 
lightenment, not  the  securing  of  united  action.  Among  the 
constituencies  the  absence  of  contest  for  office  leaves  little  for 
parties  to  do  by  way  of  nomination  and  election  of  representa- 
tives. The  parties  appear  as  convenient  permanent  divisions 
of  the  citizenship  to  promote  discussion  for  the  instruction  of 
voters.  Much  of  the  jiolitical  life  is  limited  to  the  cantons  and 
cities.     Local  parties  conlined  to  a  single  canton  abound. 

Socialism  and  Other  Reforms.  —  Besides  the  parties  there  are 
numerous  organizations  to  promote  special  reforms.  Such 
associations  ai)peal  to  all  parties  or  to  the  whole  citizenship  re- 
gardless of  party.  'Vhc  rtlation  of  reform  associations  to  the 
party  system  is  illustralid  by  the  position  of  the  Swiss  Social- 
ists. 

The  .sociali>tic  i)roi)agan(la  i)cgan  early  in  tiie  last  century. 
For  many  decades  it  was  but  one  among  numerous  reform 
organizations.  When  socialism  became  an  active  political  factor 
in  surrounding  slates  the  question  was  raised  whether  the  Swiss 
Socialists  should  not  go  into  politics  as  a  party.  The  prevail- 
ing sentiment  has  been  in  favor  of  remainingaloof  from  party  and 
seeking  f|uictly  to  permeate  the  eitizenship  will)  lluii-  doctrines. 


THE  WORKING   OF   THE   SYSTEM  637 

Many  of  the  Social  Democrats,  however,  are  Socialists.  In 
some  localities  the  socialist  organization  has  been  drawn  into 
political  contests,  and  in  Zurich,  at  one  time,  they  made  up 
nearly  half  of  the  Executive  Council.  Their  leaders  were  even 
fearful  lest  at  the  next  election  they  should  have  a  majority  in 
the  Council.  Because  of  the  fact  that  the  Socialists  are  more 
thoroughly  organized  than  any  other  party,  an  actual  majority 
would  raise  the  embarrassing  question  of  party  responsibility,  — 
a  thing  which  is  alien  to  the  Swiss  mind.  In  Germany,  France, 
Italy,  in  all  countries  where  parties  either  rule  or  try  to  rule, 
socialist  organizations  become  political  parties.  Swiss  Socialists 
seek  to  maintain  the  same  thoroughness  of  organization,  but  they 
strive  to  keep  it  out  of  politics.  Except  for  a  few  brief  periods, 
the  Radical  party  has  maintained  an  actual  majority  in  the 
Swiss  Legislature  since  1848.  Had  the  party  been  organized 
as  are  the  Socialists,  and  had  it,  as  a  party,  advocated  precise 
and  definite  policies,  this  could  not  have  been.  The  parties 
survive  with  little  change  because  they  do  not  seek  to  govern, 
though  they  do  supply  needed  light  to  the  governing  bodies. 

Closely  related  to  this  function  of  enlightenment  is  the  rise 
of  Proportional  Representation.  The  advocates  of  the  system 
aim  not  only  to  give  to  the  existing  parties  representation  in  legis- 
lative and  executive  councils  in  proportion  to  their  numbers,  but 
to  secure  representation  to  smaller  bodies  of  citizens.  As  nearly 
as  may  be  the  Legislature  is  intended  to  reflect  the  views  of  all 
sections  of  the  body  politic.  If  in  such  a  system  one  political 
party  happens  to  have  a  clear  majority  over  all  others,  it  is 
because  that  party  is  most  loosely  organized  and  reflects  in  it- 
self the  widest  range  of  diverse  opinion.  Only  the  party  least 
fitted  to  rule  can  have  a  majority. 

During  the  agitation  for  the  new  Constitution  of  1874  the 
Radicals  had  for  a  brief  period  less  than  a  majority  and  the 
Liberals  held  the  balance  of  power.  Liberals  gained  a  majority 
in  the  Federal  Council.  A  few  years  later  the  Radicals  had  re- 
gained a  majority  in  the  Legislature,  but  the  Federal  Council 
continued  to  be  Liberal,  though  the  party  of  that  name  was  not 
one  fifth  of  the  Assembly.  The  executive  officers  are  continued 
in  office  without  regard  to  party  affiliation.  Not  one  instance 
has  occurred  since  the  triumph  of  direct  democracy  in  1874, 
of  failure  to  reelect  a  Federal  Councilor  who  was  willing  to  con- 


638  COMPARATI\E    KREE   GOVERNMENT 

tinue  in  office.  When  vacancies  do  occur  places  are  filled  for  the 
good  of  the  service,  not  for  party  advantage.  There  is  a  growing 
conscious  effort  to  have  all  i)arties  represented  in  the  Council. 
The  Clericals,  always  a  small  minority  and  the  most  reactionary 
of  the  parties,  have  found  a  place  in  the  Council.  Socialists  also 
have  been  conceded  representation. 

REFERENCES 
See  Chap.  LII. 


CHAPTER  LV 

Switzerland  Compared  with  the  United  States  and 
England 

The  fundamental  distinction  between  the  two  leading  types 
of  free  government  is,  that  the  cabinet  system  unites  the  execu- 
tive with  the  legislature,  while  the  presidential  system  separates 
them.  Upon  this  basis  the  Swiss  government  belongs  to  the 
presidential,  or  American  type,  rather  than  to  the  cabinet  class. 
Even  in  the  cantons  where  the  executive  councilors  are  made 
voting  members  of  the  legislative  councils,  the  legislative  and 
executive  functions  remain  distinct.  The  executive  council  is 
not  responsible  to  the  legislative  council  for  its  policy  of  ad- 
ministration. In  communes  and  cantons,  where  the  legisla- 
ture is  the  entire  electorate,  the  executive  council  is,  in  a  sense, 
responsible  to  the  legislature  though  as  a  subordinate  committee 
or  representative  body.  If  the  legislature  is  the  body  politic,  then 
the  executive  is  subject  to  it,  as  are  all  other  officers.  Never- 
theless, the  Swiss  government  is  not  of  the  presidential  type. 
It  is  a  government  approaching  direct  democracy. 

Personal  vs.  Joint  Responsibility.  —  Comparing  the  three  sys- 
tems with  reference  to  the  personnel  of  the  executive,  it  is  to  be 
noted  that  both  the  English  and  the  American  executives  have  a 
chief  person  at  the  head.  The  king  is  by  law  the  chief  executive. 
According  to  the  Constitution,  the  Prime  Minister  with  a  body 
of  associates  whom  he  has  chosen  make  up  the  responsible 
Government.  Executive  power  is  either  personal  or  is  per- 
sonated by  the  party  leader. 

Personal  rule  is  even  more  obvious  in  the  United  States.  The 
President  is  the  responsible  Executive.  The  members  of  his 
Cabinet  are  assistants  and  advisers,  but  responsibility  rests  with 
the  President.  The  governor  is  the  chief  executive  in  each  of 
the  States,  and,  for  the  most  part,  the  mayor  is  chief  magistrate 
in  the  cities.  The  rule  is  personal  and  responsibility  rests  with 
an  individual  officeholder. 

f>39 


640  COMPARATIVE   FREE   GOVERNMENT 

It  is  difficult  to  imagine  a  greater  contrast  than  Switzerland 
presents  to  the  American  system.  Nowhere,  either  in  the  execu- 
tive, the  legislature,  or  the  judiciary,  are  important  responsibili- 
ties lodged  with  a  single  officer.  The  President  of  the  Republic 
is  not  the  chief  executive.  He  has  a  minimum  of  ceremonial 
duties,  he  is  permitted  to  serve  only  one  year,  and  for  all  of  his 
important  official  duties  six  other  members  of  a  governing  board 
share  in  the  responsibility.  The  President  is  the  chairman  of 
the  Council,  but  he  presides  over  a  Cabinet  of  equals  of  which  he 
is  simply  a  member.  The  President  of  the  United  States  is  not 
a  member  of  his  Cabinet.  Like  the  Swiss  Executive  Council, 
the  Cabinet  is  made  up  of  the  heads  of  departments,  but  each 
member  is  individually  responsible  to  the  President  for  the  con- 
duct of  his  department.  Joint  responsibility  is  no  part  of  the 
American  plan.  The  cabinet  members  give  advice  to  the  Presi- 
dent, which  he  is  not  required  to  follow.  A  fair  degree  of  unity 
and  harmony  is  maintained  in  the  American  Cabinet,  because  the 
President  would  not  tolerate  a  member  who  refused  to  support 
or  acquiesce  in  his  policies.  The  Swiss  heads  of  departments 
hold  office  by  legislative  appointment  for  three-year  terms :  all 
are  chosen  at  the  same  time,  but  the  custom  of  reelection  makes 
it  practically  a  life  service.  Cabinet  positions  in  America  are 
held  at  the  will  of  the  President ;  it  is  exceptional  for  a  member 
to  remain  in  a  Cabinet  after  the  expiration  of  the  official  term  of 
the  President  who  a[)pointed  him. 

Joint  responsibility  is  a  term  used  in  describing  both  the 
English  Cabinet  and  the  Swiss  Federal  Council,  though  it  de- 
notes something  radically  (lifferent  in  the  two  countries.  Joint 
cabinet  responsibility  in  I'^ngland  grows  out  of  the  fact  that  the 
Cabinet  is  the  chief  agency  for  responsible  party  government. 
Positions  in  it  are  held  at  the  will  of  the  House  of  Commons 
and  all  its  members  stand  or  fall  together.  Not  only  are  the 
members  jointly  responsible  for  the  acts  of  the  Cabinet,  the 
system  re(|uires  also  that  they  hold,  or  at  least  profess,  identical 
opinions  on  the  leading  issues  of  the  day.  It  is  an  artificial  unity 
growing  out  of  the  exigencies  of  party  government.  But  the 
Swiss  repudiate  |)arty  governmental  control,  seeking  instead  to 
attain  representative  government  in  the  executive  as  well  as  in 
the  National  Assi-mbiy.  As  far  as  possible  they  would  have  all 
parties  and  all  shades  of  opinion  npresi'ntcd.     'I'lu'  heads  of  de- 


SWITZKRLAXD    COMPARED   WITH    UNITED    STATES      641 

partments  belong  to  different  parties,  and  are  expected  to  be 
representative,  not  necessarily  unanimous,  on  seriously  contro- 
verted matters.  Neither  in  their  relations  to  the  legislature  nor 
to  the  community  at  large  is  there  any  demand  for  unanimity. 
Joint  responsibility  means  that  all  measures  adopted  shall  have 
the  approval  of  at  least  four  of  the  seven  members,  and,  if  there 
is  serious  delinquency  or  wrongdoing  on  the  part  of  one,  all  are 
subject  to  criticism. 

The  Swiss  have  never  experienced  the  need  of  limiting  the 
power  of  a  tyrannical  executive  by  means  of  legislative  restraints. 
They  have  found  no  occasion  for  elaborate  detail  in  the  formu- 
lation of  statutes.  The  Roman  method  of  giving  clear  expres- 
sion in  brief  general  terms  to  the  will  of  the  state,  leaving  to  the 
executive  the  filling  out  of  needed  details,  is  followed.  This 
explains  the  fact  that  a  mass  meeting  can  in  a  single  day  enact 
all  the  statutes  that  the  canton  needs  for  a  year.  Legislation  is 
simple,  easy,  and  satisfactory.  Between  legislature  and  execu- 
tive no  jealousy  or  rivalry  exists. 

Scope  and  Functions  of  the  Legislatures.  —  The  American 
model  was  undoubtedly  influential  in  determining  the  form 
of  the  Swiss  Federal  Assembly.  The  Council  of  States  corre- 
sponds to  the  Senate  of  the  United  States  with  equal  representa- 
tion from  the  cantons,  and  the  National  Council  is  like  the  House 
of  Representatives,  having  at  least  one  member  from  each  canton 
and  additional  members  for  every  20,000  inhabitants.  There 
are,  however,  differences  in  the  apportionment  of  their  functions 
and  in  their  practical  working.  The  houses  of  the  Congress  of 
the  United  States  meet  in  joint  session  once  in  four  years  to  can- 
vass the  votes  for  President  and  Vice  President.  If  no  one  has 
been  elected  to  the  Presidency,  the  Lower  House  proceeds  to 
elect  a  President ;  and,  in  case  of  failure  of  a  majority  for  Vice 
President,  the  Senate  elects.  The  Swiss  Federal  Assembly  each 
year  elects  the  President  of  the  Republic  and  a  V^ice  President  of 
the  Federal  Council ;  once  in  three  years  it  elects  the  seven 
members  of  the  Federal  Council  and  a  Chancellor  who  keeps 
the  records  of  both  executive  and  legislature.  Once  in  six  years 
it  elects  the  fourteen  members  of  the  Federal  Tribunal,  or  su- 
preme court,  and  it  elects  the  generals  of  the  army.  Besides 
these  electoral  duties  the  joint  session  exercises  the  pardoning 
power  and  serves  as  a  final  court  of  appeal  in  cases  of  public 


642  COMPARATRE   FREE   GOVERNMENT 

law  or  of  conflicts  between  authorities.  The  joint  legislative 
session  is,  then,  in  Switzerland,  an  important  institution, 
while  in  America  its  labors  are  confined  to  the  one  act  of  deter- 
mining the  result  of  an  election. 

A  two-thirds  vote  of  the  Senate  alone  is  required  to  validate 
a  treaty  of  the  American  government.  A  majority  vote  of  the 
two  houses  of  the  Swiss  Legislature,  sitting  separately,  is  re- 
quired to  validate  a  treaty  already  agreed  upon  by  the  Federal 
Council.  Appointments  not  otherwise  provided  for  by  law  are 
made  by  the  President  of  the  United  States  with  the  advice  and 
consent  of  the  Senate.  In  Switzerland  this  power  is  lodged  with 
the  Federal  Council,  and  no  legislative  approval  is  required.  It 
should  be  noted,  however,  that,  owing  to  the  fact  that  federal 
laws  are  administered  by  the  cantons,  federal  appointments  are 
few.  The  American  Lower  House  exercises  the  power  of  im- 
peachment while  the  Senate  sits  as  a  court  for  the  trial  of  such 
cases.     The  Swiss  make  no  provision  for  impeachments. 

Bills  for  raising  revenue  must  originate  in  the  Lower  House  of 
Congress.  In  the  Swiss  National  Assembly  they  may  originate 
in  either  house.  The  election  of  Senators  is  regulated  by  the 
Constitution  and  by  the  federal  statutes.  The  election  of  mem- 
bers of  the  Council  of  States  is  left  entirely  to  the  separate  can- 
tons. The  salaries  of  the  members  of  Congress  are  fixed  by  fed- 
eral law  and  are  jjaid  out  of  the  federal  treasury.  The  members 
of  the  Council  of  States  receive  compensation  from  the  cantons 
which  they  represent.  The  members  of  the  lower  house  in  the 
National  Assembly  are  paid  out  of  federal  appropriations.  No 
age  requirement  is  fixed  for  membership  in  either  Swiss  house. 
Any  voter  who  is  not  a  clergyman  may  be  elected  to  the  Lower 
House.  'I'he  same  rule  holds  in  the  other  House  unless,  per- 
chance, some  canton  may  have  adopted  a  different  rule.  All 
the  members  of  the  more  numerous  body  are  elected  at  one  time 
and  serve  three  years.  Some  of  the  cantons  elect  their  members 
of  the  Ui)j)er  House  yearly,  l)ut  the  greater  number  elect  for 
terms  of  three  years. 

The  fundamental  [)rinti|)le  to  be  observed  in  the  comparison 
of  the  two  legislatures  is  that  in  America  there  exists  a  consider- 
able differentiation  of  functions  between  the  two  houses,  while 
the  Swiss  houses  maintain  a  complete  identity  of  function.  In 
joint  session  one   house  is  outvoted    b\'  the  other  nearly  four 


.      SWITZERLAND   COMPARED  WITH   UNITED   STATES      643 

to  one.  If  the  Houses  were  in  controversy  over  matters  for 
joint  action,  the  more  numerous  council  would  rule.  But 
controversies  are  unusual.  It  is  observed,  however,  that  execu- 
tive Councilors  are  more  likely  to  be  chosen  from  the  larger 
chamber  and  that  chamber  attracts  greater  political  interest. 
Neither  house  has  any  dignity  or  prestige  to  defend ;  cordial 
cooperation  under  executive  guidance  is  the  rule.  No  bills 
are  introduced  for  political  effect;  no  speeches  are  made  for 
distribution  in  election  campaigns.  During  the  brief  sessions 
of  four  or  five  weeks  each,  the  members  of  the  houses  attend 
strictly  to  business.  Inevitably  some  measures  fail  of  enact- 
ment for  lack  of  assent  from  the  smaller  House,  yet  no  general 
criticism  arises  on  that  account.  One  house  is  as  democratic 
as  the  other.  There  has  been  an  agitation  for  the  extension  of 
the  Popular  Initiative  to  federal  legislation.  This  has  failed 
because  the  legislature  is  so  constituted  that  it  can  be  relied 
upon  to  pass  any  measure  which  the  people  want.  If  anything 
in  the  form  of  obstruction  or  minority  rule  should  appear,  the 
initiative  would  surely  be  adopted. 

Making  and  Amending  the  Constitution.  —  The  relation  of 
the  two  houses  of  the  Federal  Legislature  to  making  and  amend- 
ing the  Constitution  illustrates  the  high  degree  of  confidence 
placed  in  them.  The  constitutions  of  all  the  cantons  are  sub- 
ject to  approval  by  each  of  the  two  Houses  acting  separately. 
Every  amendment  to  the  constitutions  of  the  cantons  takes 
place  under  federal  supervision.  If  the  two  houses  of  the  Na- 
tional Assembly  agree  upon  an  amendment  to  the  Federal 
Constitution,  they  adopt  it  by  majority  vote  just  as  they 
would  a  statute.  The  proposed  amendment  then  passes  to 
the  people  for  approval,  and  to  become  valid  it  must  receive 
not  only  a  majority  of  all  votes  cast  upon  the  question,  but  the 
majority  must  be  so  distributed  as  to  include  a  majority  of  the 
cantons.  If  one  house  desires  a  change  in  the  Constitution 
and  the  other  does  not  consent  to  it,  the  aj)peal  is  made  to  the 
voters.  Finally,  if  the  people  wish  a  change  in  the  Constitu- 
tion, 50,000  petitioners  may  secure  a  vote  on  a  specifically 
formulated  amendment.  All  that  the  Legislature  does  in 
that  case  is  to  present  the  proposed  act  to  the  voters  for  approval. 
The  same  number  of  petitioners  may  require  the  Legislature  to 
submit  the  question  of  a  general  revision  to  the  voters.     If  a 


644  COMPARATIVE   FREE   GOVERNMENT 

majority  of  the  voters  favor  revision,  this  has  the  effect  of  dis- 
solving the  existing  Legislature,  and  a  newly  elected  National 
Assembly  is  chosen  which  proceeds  to  prepare  the  desired  revision 
of  the  Constitution  to  be  submitted  for  approval.  The  Legis- 
lature, therefore,  is  the  guardian  of  the  entire  process  of  con- 
stitution making  both  in  the  States  and  in  the  Confederacy. 
With  the  single  exception  of  a  specihc  amendment  demanded 
by  petition,  the  Legislature  formulates  all  changes  in  the  Con- 
stitution. The  same  body  in  joint  session  of  the  two  Houses 
is  the  final  interpreter  of  the  Constitution. 

The  legislative  experience  of  Switzerland  and  that  of  Eng- 
land so  widely  differ  that  it  is  difficult  to  make  a  helpful  com- 
parison in  brief,  general  terms.  England  was  first  to  develop 
the  bicameral  form  for  legislative  assemblies.  Switzerland  for 
many  centuries  held  to  the  single  chamber  and  when  finally  two 
houses  were  set  up  for  the  federal  legislature  they  were  used 
in  such  a  way  as  to  retain  many  of  the  features  of  a  single  cham- 
ber. 

The  British  Parliament  has  been  made  up  of  (Hscordant  and 
opposing  elements,  —  the  Crown,  the  Lords  Spiritual,  the  Lords 
Temporal,  and  the  Commons.  Nothing  of  the  sort  has  appeared 
in  the  Swiss  legislatures  :  King  and  Lords  are  omitted.  In  the 
United  States,  in  England,  and  in  Switzerland  alike,  democracy 
has  arisen  out  of  the  devotion  of  the  people  to  their  local  privi- 
leges. The  prolonged  duel  between  the  EngUsh  Crown  and 
Parliament  resulted  in  centralizing  democracy  in  a  representa- 
tive assembly.  Modern  towns,  counties,  and  parishes  receive 
their  popukir  privileges  at  the  hands  of  Parliament.  France 
exhibits  this  same  order  of  development  in  a  more  extreme 
form,  but  a  precisely  contrary  order  has  controlleil  the  demo- 
cratic evolution  in  Switzerland.  There  the  communes  and  the 
cantons  held  their  dominant  positions  until  the  rise  of  the  spirit 
of  national  demcKracy.  The  radicals  are  now  securing  an 
efficient  centralized  government  despite  the  resistance  of  the 
conservative  reactionaries  who  defend  some  form  of  local 
jjrivilege. 

The  contrasts  between  the  juflicial  systems  of  the  different 
countries  are  equally  significant.  ICnglanrl  was  the  first  and 
Switzerland  the  last  to  develop  a  distinctively  national  judicial 
system.     It  is  unnecessary  to  repeal  here  the  story  of  the  rise 


SWITZERLAND    COMPARED   WITH    ENGLAND  645 

of  the  early  English  judiciary  out  of  the  habit  of  the  people  to 
look  to  the  King's  Justices  for  the  defense  of  local  liberties, 
and  to  show  how  this  led  to  a  complete  fusion  of  private  and 
public  law.  Swiss  local  liberty  is  older  than  Magna  Charta, 
yet  no  higher  authority  has  ever  arisen  in  the  name  of  law  to 
strengthen  the  hold  of  the  people  upon  their  local  privileges. 
When  disputes  have  arisen  they  have  been  settled  by  committees 
or  by  boards  of  arbitration.  Laws  have  been  executed  by 
representative  boards,  and  interpreted  and  applied  by  similar 
institutions.  Arbitration  still  holds  a  fundamental  place  in  the 
Swiss  judicial  system. 

REFERENCES 
See  Chap.  LII. 


PART    III 
DEMOCRACY    IN    OTHER   STATES 


CHAPTER  LVI 

The  SiL^LL  States  of  Europe 

Small  states  have  been  great  teachers.  Palestine  teaches 
the  world  religion  and  morality.  The  little  Greek  states  sur- 
pass all  others  as  teachers  of  art,  literature,  philosophy,  politics. 
It  was  when  Rome  was  a  small  state  that  the  principles  of 
Roman  law  were  developed.  The  law  was  extended  through 
the  comparative  study  of  other  small  states,  or  communities. 
That  which  is  of  permanent  good  to  the  race  came  from  the 
winnowing  of  experiences  gathered  from  innumerable  small 
communities.  Imperial  Rome  was  corrupt,  degenerate,  in 
many  ways  a  curse  to  mankind.  Morality  and  the  manly  vir- 
tues emanate  from  local  community  life,  while  the  great  con- 
quering states  have  often  transformed  brave  men  into  cowards. 
The  Swi'ss,  who  have  never  been  subjected  to  the  emasculating 
influence  of  imperialism,  have  been  distinguished  for  bravery. 
Not  until  the  advent  of  self-conscious,  belligerent  democracy 
and  the  federal  principle  in  government  has  it  been  possible  to 
protect  the  people  of  a  great  state  from  wholesale  degeneracy. 
The  battle  for  liberty  in  the  great  states  may  do  much,  but 
the  lesser  states  on  the  Continent  of  Europe  are  in  a  position  to 
render  a  unique  service  to  humanity. 

Three  Groups  of  States.  —  Europe  is  divided  into  three 
distinct  governmental  groups.  The  five  leading  continental 
countries  of  France,  Germany,  Austria,  Russia,  and  Italy, 
with  England,  make  up  the  Concert  of  Europe,  and  their 
policies  are  determined  by  imperialistic  ideas.  The  eight 
minor  states  of  Switzerland,  Denmark,  Sweden,  Norway, 
Holland,  Belgium,  Portugal,  and  Spain  stand  second.  The 
Balkan  states,  formed  out  of  the  Turkish  empire,  complete  the 
list. 

These  minor  states  share  in  the  world's  commerce  and  colonial 
possessions  to  an  extent  out  of  all  proportion  to  their  popula- 

649 


650  COMPARATRE   FREE   GOVERNMENT 

tion.  The  little  state  of  Norway  maintains  a  merchant  marine 
greater  than  that  of  any  state  on  the  Continent  except  Germany, 
and  the  merchant  marine  of  the  three  Scandinavian  states  is 
nearly  equal  to  that  of  Germany.  Holland  does  a  carrying  trade 
more  than  one  fourth  that  of  Germany,  and  during  the  ten 
years  ending  19 14  the  rate  of  increase  in  the  Dutch  merchant 
marine  was  twice  that  of  the  German.  Seven  small  states  of 
the  Continent  maintain  a  merchant  marine  in  proportion  to  their 
population  six  times  that  of  the  five  military  and  naval  states. 
In  respect  to  colonies  and  foreign  possessions  the  facts  are 
equally  striking.  Each  of  the  three  states  of  Holland,  Belgium, 
and  Portugal  rules  over  a  greater  colonial  population  than  does 
Germany ;  and  together  their  colonial  subjects  are  nearly 
twice  those  of  France.  Although  they  have  no  huge  armies 
and  navies,  they  have  yet  been  comparatively  secure  in  their 
possessions,  and  their  experience  is  a  lesson  of  great  value  to  the 
law-abiding  in  all  lands. ^ 

Each  one  of  the  minor  states  is  an  independent  school  of 
domestic  politics.  Switzerland  has  been  described.  Spain 
has  passed  through  the  various  experiences  of  a  people  sub- 
jugated, Hberated,  risen  to  imperial  dominion  and  then  incur- 
ring the  degeneration  incident  to  such  rule ;  while,  in  recent 
years,  the  state  is  being  rejuvenated  by  the  development  of  a 
citizenship  devoted  to  popular  education  and  self-government. 
Absolute  monarchy  has  given  place  to  constitutional  monarchy 
and  this  in  turn  is  Ijcing  transformed  into  a  j^arliamcnlary 
monarchy  or  into  a  republic.  Portugal,  whose  history  has 
been  closely  linked  to  that  of  Spain,  has  assumed  the  republi- 
can form  of  government. 

Belgium  and  Holland  have  won  the  lasting  gratitude  of  all 
lovers  of  liberty  for  their  persistent  refusal  to  submit  to  tyran- 
nical rule.  In  defending  their  own  local  liberties  they  have 
protected  other  peoples  from  <)|)pression.  Germans  and  Eng- 
lish have  been  benelkiarirs  of  their  \alor.  A  Dutch  army 
assisted  the  English  in  ri(hling  themselves  of  a  tyrannical  king, 
and  for  several  generations  I  lie  people  of  the  Low  Country  took 
a  leading  part  in  imposing  restraints  u|»on  the  disorderly  and 
imperialistic  rulers  of  Spain  and  Pranee.  Belgium  and  Hol- 
land early  established  constitutional  governments  and  the  Bel- 

' 'this  par.iKr.-iidi  (U-scribcs  ihi-  (onditiDii  ;it  ilu-  bcgintiiiij,'  of  llic  War  of  1914. 


THE  SMALL   STATES   OF   EUROPE  65 1 

gian  constitution  served  as  a  model  for  the  framers  of  the  con- 
stitutions of  the  more  Uberal  German  states. 

Equally  important  are  the  contributions  of  the  Scandinavian 
states  to  the  cause  of  freedom.  More  than  thirty  years  before 
the  Swiss  discarded  the  rule  of  the  aristocratic  oligarchy  in 
their  Confederation  the  Norwegians  had  become  thoroughly 
democratized.  In  1814  the  nobility  was  abolished  and  a  liberal 
frame  of  government  adopted.  By  outside  pressure  Norway 
was  forced  into  a  union  with  Sweden  and  for  nearly  a  hundred 
years  continual  friction  existed  between  the  two  states,  until, 
in  1905,  by  mutual  agreement  Norway  became  independent. 
At  the  time  of  the  separation  from  Sweden  the  people  were 
divided  in  their  preference  as  to  the  form  of  government.  Some 
favored  a  republic  after  the  model  of  the  United  States ;  others 
preferred  a  cabinet  government  after  the  English  form,  but 
all  were  equally  democratic.  The  subject  was  thoroughly  dis- 
cussed, and  the  difficulty  of  reaching  agreement  on  a  form  of 
republican  organization  led,  finally,  to  the  acceptance  of  the 
monarchy.  The  people,  however,  remain  in  complete  control 
of  their  government.  The  King,  who  was  chosen  by  the  people, 
accepts  the  condition  that  he  is  in  no  way  to  interfere  with  the 
people's  representatives  in  the  management  of  public  affairs. 
The  ministers  are  made  responsible  to  a  legislature  of  a  single 
chamber  elected  by  universal  suffrage,^  and  all  matters  pertain- 
ing to  the  Royal  Household  are  subject  to  regulation  by  law. 

Sweden,  like  England,  has  been  developing  a  parliamentary 
kingdom  out  of  earlier  monarchical  forms,  but  the  movement 
toward  democratic  government  has  not  yet  gone  so  far  nor 
exactly  along  the  same  paths  as  in  England.  The  Constitu- 
tion of  1809,  under  which  the  country  is  now  governed,  took  the 
form  of  an  agreement  between  the  newly  chosen  King  and  the 
Four  Estates  acting  for  the  people,  in  which  each  party  made 
certain  promises  and  certain  concessions.  Although  the  King 
described  himself  as  "  Sovereign  by  the  Grace  of  God  and  by 
the  right  of  birth,"  the  Estates  asserted  their  right  to  give  to  the 
country  a  new  constitution  and  to  abolish  all  the  fundamental 
laws  in  force.  They  had  deposed  one  King  and  now,  in  the  name 
of  the  people,  invited  Charles  XIII  to  occupy  the  throne.  Of 
the    three    Scandinavian   States,    Sweden    concedes    the    most 

1  Suffrage  now  practically  universal. 


652  COMPARATIVE   FREE   GOVERNMENT 

of  royal  authority  to  parliamentary  monarchy.  The  Swedish 
King  retains  much  executive  power  as  commander  of  the  army 
and  navy,  and  as  having  a  general  initiative  in  political  affairs. 
He  is  granted  general  oversight  and  control  of  many  details 
of  legislation  and  administration,  and  is  invested  with  an 
authority  almost  unlimited  in  the  matter  of  external  politics. 
At  the  same  time,  he  is  obliged  to  choose  a  Council  of  State 
whose  members  are  his  advisers,  and  every  royal  decree,  except 
military  orders,  must  be  countersigned  by  the  Minister  at  the 
head  of  the  department  most  concerned,  and  this  Minister  is 
responsible  for  the  advice  acted  upon.  The  Swedish  Riksdag 
consists  of  two  Chambers  theoretically  of  equal  powers.  The 
Upper  Chamber,  of  one  hundred  and  fifty  members,  is  elected 
by  indirect  proportional  vote  through  the  provincial  and  munic- 
ipal councils.  A  candidate  must  be  thirty-five  years  of  age 
and  must  have  held  for  at  least  three  years  previous,  land  valued 
at  50,000  kroner  ($13,500)  or  have  paid  taxes  on  an  annual 
income  of  3000  kroner  (.S800).  The  term  of  office,  since  1909, 
is  six  years,  one  sixth  of  the  members  being  elected  annually. 
The  Lower  Chamber,  of  two  hundred  and  thirty  members,  is 
elected  once  in  three  years  by  universal  manhood  suffrage  of 
those  twenty-four  years  of  age. 

From  1665  to  1849  the  little  Kingdom  of  Denmark  was  under 
an  absolute  monarchy.  The  first  half  of  the  nineteenth  cen- 
tury saw  agitation  for  a  constitution  and  the  grant  of  slight 
concessions  to  popular  interest  in  the  government.  In  1849 
the  King  and  the  national  assembly  adopted  a  constitution 
which  recognized  a  parliament  of  two  representative  Chambers 
and  made  possible  a  comparatively  free  government.  The  diffi- 
culties over  Schleswig-Holstein  and  the  resulting  war  with 
Germany  in  1864  led  to  its  a])andonment  and  the  substitution 
of  various  short-lived  constitutions.  liut  after  the  Duchies 
of  Schleswig-Holstein  had  been  lost,  the  pe()i)le  demanded  the 
restoration  of  the  Constitution  of  1849,  and  in  1866  the  instru- 
ment was  reissued  in  a  revised  form. 

Within  the  century  the  Scandinaxian  stales  have  exhil)ited 
all  the  varieties  of  kingly  government  from  ahsokite  monarchy 
to  extreme  democracy.  Autocracy  has  given  place  to  constitu- 
tional monarchy  and  constitutional  monarchy  to  Parliamentary 
monarchy,  and  in  the  case  of  \orwa\'  the  linal  form  is  r;.'achetl. 


THE  SMALL   STATES   OF   EUROPE  653 

The  history  of  Europe  is  thus  rehearsed  in  these  three  small 
states.  Of  late  years  Sweden  and  Denmark  have  been  rapidly 
following  the  example  of  Norway.  The  various  unions  and 
attempts  at  union  between  the  Scandinavian  powers  have 
thrown  important  light  on  the  general  problem  of  federation. 

Less  fortunate  has  been  the  history  of  the  Balkan  States  under 
the  deadly  shadow  of  imperialism.  Subject  as  they  had  been 
for  many  centuries  to  the  corrupt  Roman  Empire,  followed 
by  a  thousand  years  of  the  debasing  rule  of  Byzantian  imperial- 
ism, they  became  in  the  fifteenth  century  a  part  of  the  tyrannous 
Ottoman  Empire.  No  chance  has  come  to  them  to  share  in 
the  expanding  thought,  the  fermenting  life  of  Western  Europe. 
Crushed  by  the  pecuUar  type  of  persistent  governmental 
despotism  for  which  the  Turks  have  shown  an  actual  genius, 
all  possibility  of  any  sort  of  union  among  the  various  peoples 
of  Southeastern  Europe  has  been  forestalled  and  prevented. 
Jealousy  and  discord  between  the  diverse  races  have  been  sys- 
tematically fomented  according  to  Turkish  policy.  Distinc- 
tions of  race,  language,  religion,  and  sentiment  have  been  care- 
fully preserved.  Suspicion  and  hatred  have  not  been  allowed 
to  yield  to  natural  neighborly  kindness  and  human  brotherli- 
ness  even  in  the  smallest  villages  and  towns,  where  the  different 
peoples  have  gathered  by  themselves  in  hostile  sections  and 
dwelt  side  by  side  in  distrust  and  fear  of  one  another.  Indus- 
trious r.nd  frugal,  they  have  been  kept  poor  by  oppressive  Turk- 
ish tribute  and  submissive  by  frequent  massacres. 

When  at  last  this  age-long  subservience  of  the  oppressed 
nationalities  began  to  break  under  the  stirrings  of  a  new  life ; 
when  western  ideas  began  to  penetrate  the  darkened  minds,  and 
one  state  after  another  emerged  and  achieved  autonomy  or 
independence,  then  a  new  danger  assailed  the  unhappy  Balkan 
peoples.  They  became  the  victims  of  plots  and  counter-plots 
among  the  European  powers  greedy  for  dominant  influence  in 
the  crumbling  Turkish  Empire.  It  became  the  common  prac- 
tice of  the  powerful  states  of  Europe  to  parcel  out  the  territories 
of  Western  Turkey  among  themselves  with  scant  reference  to 
the  interests  of  their  inhabitants.  Rising  against  intolerable 
wrongs,  the  Balkan  peoples  in  191 2  waged  a  successful  war  of 
independence ;  but  they  were  not  allowed  to  enjoy  the  full 
fruits  of  their  victory.     Ancient  race  hatred  and  jealousy  sur- 


654  COMPARATIVE    FREE   GOVERNMENT 

vived,  and  a  second  conflict  followed  between  Bulgarians  and 
Greeks  and  Servians,  and  it  was  the  Balkan  incident  which  was 
made  the  occasion  for  beginning  the  War  of  1914. 

The  modern  states  of  Southeastern  Europe  have  had  a 
brief  history.  Greece,  the  oldest,  dates  from  1830.  Bulgaria 
became  autonomous  after  the  war  between  Russia  and  Turkey 
in  1877.  Considering  the  limited  time  and  opportunity  for 
development  which  they  have  enjoyed,  they  have  made  com- 
mendable progress.  Their  present  condition  makes  a  profound 
appeal  to  all  lovers  of  liberty  on  account  of  their  prolonged 
endurance  of  imperial  despotism.  No  people  should  yield  to 
despair,  if  Greeks  can  yet  be  Greeks  again  after  two  thousand 
years  of  crushing  tyranny. 

Small  States  and  International  Law.  —  The  smaller  states 
have  an  important  place  in  respect  to  the  development  of 
international  law.  Law  among  nations  is  analogous  to 
law  among  the  classes  within  a  single  state.  The  common 
people  are  the  first  to  become  law-abiding.  In  theory  every 
just  rule  of  law  implies  equality,  since  it  is  equally  bind- 
ing upon  the  rich  and  the  poor,  the  great  and  the  humble.  In 
actual  practice  it  is  indeed  long  before  real  equality  before  the 
law  is  achieved.  In  all  states  it  is  as  yet  an  unattained  ideal. 
The  humble  obey  the  law,  appreciating  more  keenly  its  advan- 
tages, and  they  ultimately  generate  a  force  which  will  compel 
or  induce  the  great  and  the  strong  to  become  law-abiding. 

Equality  between  states  is  a  fundamental  principle  of  inter- 
national law.  Regardless  of  size  or  strength  or  previous  condi- 
tion, all  the  states  which  the  high  contracting  powers  recognize 
as  sovereign  or  independent  are  accounted  ecjual.  All  are  alike 
bound  to  observe  international  rules.  All  share  alike  the  bene- 
fits which  they  secure.  A  primary  object  on  the  part  of  the 
great  states  of  Europe  that  first  began  to  formulate  the  rules 
of  international  law,  was  to  make  an  end  of  wars  of  conquest, 
to  assign  to  each  state  its  metes  and  bounds,  and  to  agree  upon 
rules  for  its  protection;  to  substitute  justice  and  fair  dealing 
in  place  of  the  brutalities  of  war.  Numerous  weak  states  were 
acknowledged  as  independent,  and  as  having  cfjual  rights  with 
all  other  states.  The  small  states  have  uniformly  observed 
the  rules  of  international  law.  They  understand  its  advantages ; 
they  admire  its  principles  of  justice  and  equality.     The  power- 


THE   SMALL  STATES   OF   EUROPE  655 

ful  states,  on  the  other  hand,  have  not  been  law-abiding.  Among 
nations,  as  between  citizens  within  each  nation,  there  is  one  law 
for  the  humble  and  the  weak  and  another  law  for  the  great  and 
the  powerful.  The  small,  law-abiding  states,  therefore,  furnish 
a  sure  reliance  for  developing  a  force  which  will  compel  or  per- 
suade the  great  to  become  law-abiding. 

The  problem  is  the  same  within  the  states  and  between  the 
states.  It  is  the  problem  of  democracy.  There  can  be  no 
prevailing  democracy  in  any  state  whose  government  is  dis- 
posed to  encroach  upon  the  rights  .of  other  states.  It  is  there- 
fore the  especial  duty  of  the  democracy  in  every  state,  great 
or  small,  to  rally  to  the  defense  of  the  weak  states  threatened 
by  unruly  neighbors.  If  the  weak  can  be  made  secure  in  their 
rights,  that  will  go  far  toward  insuring  international  justice. 

REFERENCES 

Cambridge  Modern  History,  Vol.  XI. 
DoDD.     Modern  Constiliilions. 
Hall.     International  Laiv,  1904,  pp.  47—51. 
OcG.     The  Governments  of  Europe,  Chaps.  XXVIII-XXXIV. 
Oppeneteim.     International  Laic,  Two  Vols.,  Vol.  I,  pp.  15-20,  170-177. 
Seignobos.     a  Political  Hislorv  of  Contemporary  Europe,  Vol.  I,  Chaps. 
Vni,  X;  Vol.  H,  Chaps.  x'VHI-XXL 


CHAPTER   LVII 
South  America  and  Free  Government 

To  the  student  of  politics  South  America  is  both  an  interest- 
ing and  a  fruitful  field.  Numerous  and  striking  contrasts  are 
to  be  found  between  her  institutional  life  and  that  of  the  United 
States  or  that  of  any  of  the  free  states  of  Europe.  Forms  and 
principles  of  government  are  being  tested  under  widely  vary- 
ing conditions.  New  illustrations  of  the  difficulties  to  be  over- 
come in  the  attainment  of  free  government  are  revealed  on 
every  hand.  Particularly  is  it  made  plain  that  governmental 
forms  and  processes,  if  they  are  to  be  eUcctive,  must  be  adapted 
to  the  needs  and  conditions  they  must  meet.  Abundant  evi- 
dence is  furnished  of  the  familiar  fact  that  a  governmental 
organization  which  may  be  entirely  successful  in  one  state 
may  be  wholly  unsuited  for  another.  In  the  experience  of 
South  America  the  problems  inherent  in  artificial  state  building 
are  revealed  in  all  their  perplexing  aspects.  Lessons  which  the 
nations  of  the  world  at  large  need  to  learn  arc  to  be  drawn  from 
both  her  failures  and  successes.  Her  institutional  life  is  rich 
in  suggestion  and  throws  light  upon  many  political  problems.  It 
is  for  this  reason  that  careful  study  of  South  America  is  so  much 
worth  while  for  those  who  are  genuinely  concerned  about  the 
future  of  democracy. 

It  is  well  to  be  reminded  thai  (In-  world  has  had  much  experi- 
ence with  what  may  be  called  |)a|Hr  democracy;  with  institu- 
tions that  are  democratic  in  llu-ory,  but  essentially  oligarchic  in 
operation.  Constitutions  embodying  principles  of  free  gov- 
ernment have  been  set  up  in  many  states  which  have  been 
l)owerless  to  control  i)()liti(al  practices.  If  history  teaches 
anything,  it  teaches  the  futiliiy  of  mere  constitutional  forms. 
Written  constitutions  have  their  virtues  and  are  aids  in  the 
attainment  of  democracy  if  they  are  supi)orted  by  intelligent, 

656 


SOUTH  AMERICA   AND   FREE   GOVERNMENT  657 

alert,  liberty-loving  people.  But  it  requires  more  than  a 
written  constitution,  however  democratic  in  character  it  may 
be,  to  make  a  government  free.  It  is  trite,  of  course,  to  give 
expression  to  so  obvious  a  fact ;  yet  indisputably  its  significance 
is  not  comprehended  by  multitudes  of  people  who  are  content 
with  mere  constitutional  formalism  and  who,  in  the  face  of 
long  experience,  confuse  the  shadow  of  liberty  with  the  sub- 
stance. One  of  the  great  lessons  which  believers  in  free  gov- 
ernment need  to  learn  is  that  democracy  is  not  a  form  or  method ; 
no  more  so  than  is  religion  a  ritual  or  ceremony. 

Perhaps  nowhere  are  the  effects  of  political  formalism  more 
strikingly  manifested  than  in  the  states  of  South  America. 
Though  they  have  constitutions  which  have  been  carefully 
drafted  and  which  are  adequate  in  themselves  for  the  needs  of 
free  states,  yet  free  government,  in  the  only  sense  in  which  that 
term  is  properly  used,  namely,  real  popular  government,  does 
not  exist.  The  leaven  of  liberty  is  working,  but  to  discuss  the 
democracy  of  South  America  is,  generally  speaking,  to  enter 
the  realm  of  prophecy  and  discuss  what  is  yet  to  be.  Never- 
theless progress  is  being  made  and  it  is  evident  that  in  the  future 
development  of  the  world-wide  movement  for  freedom,  South 
America  is  destined  to  hold  a  prominent  place.  Her  states  will 
be  the  scenes  of  intense  struggles  between  the  friends  and  foes 
of  free  institutions.  The  cause  of  liberty  and  justice  will  win 
in  the  end,  just  as  it  has  won  and  is  winning  in  other  lands. 
The  final  achievement  of  popular  government  may  long  be 
delayed,  for  the  obstacles  to  be  overcome  are  both  many  and 
great,  but  its  ultimate  triumph  is  certain.  In  this  struggle 
for  liberty  the  free  states  of  the  world,  large  and  small  alike, 
are  deeply  concerned.  The  possibilities  that  lie  before  the 
South  American  states  are  too  vast,  their  potential  influence 
upon  world  politics  too  great,  for  other  nations  to  ignore  what 
they  do  or  be  indifferent  to  what  they  become. 

It  cannot  be  denied  that  political  progress  in  South  America 
has  been  slow ;  so  slow,  indeed,  as  to  cause  much  questioning 
concerning  future  developments.  It  is  to  be  remembered,  how- 
ever, that  real  democracy  is  everywhere  a  thing  of  slow  growth  ; 
it  is  an  evolution,  and  its  development  can  only  to  a  degree  be 
forced  by  hot-house  methods.  The  failures  of  the  South 
American  states,  whatever  they  may  be,  are  not  essentially 

2U 


658  COMPARATIVE  FREE   GOVERNMENT 

different  from  those  which  long  characterized  the  political  life 
of  France,  Italy,  and  other  states  which  now  rank  high  among 
the  nations  of  the  world. 

To  comprehend  at  all  clearly  the  working  of  political  insti- 
tutions in  South  America,  it  is  necessary  to  consider  some  of 
the  reasons  for  her  backwardness.  The  operation  of  govern- 
ment is  everywhere  influenced,  if  not  determined,  by  the  eco- 
nomic and  social  conditions  that  prevail.  In  the  case  of  South 
America  this  influence  may  perhaps  be  more  in  evidence  than 
in  other  countries,  but  in  none  is  it  absent.  In  considering  the 
shortcomings  of  the  South  American  states,  therefore,  several 
important  social  and  economic  facts  should  be  kept  in  mind. 
Failure  to  do  this  is  likely  to  result  in  either  a  false  understand- 
ing of  the  manner  in  which  the  governments  work,  or  great 
injustice  to  the  progressive  leaders  and  thinkers  of  South  America 
who  are  laboring  diligently  to  overcome  the  conditions  which 
retard  her  development.  The  fact  is  to  be  emphasized  that  it 
is  unfair  to  judge  the  states  of  South  America  by  the  standards 
that  are  applied  to  the  United  States  or  England. 

Reasons  for  South  America's  Backwardness.  —  An  unbiased 
analysis  of  South  American  politics  can  be  made  only  by  keep- 
ing clearly  in  mind  the  background  of  Spanish  despotism  from 
which  the  South  American  states  slowly  emerged.  Though  a 
century  has  passed  since  the  Spanish  yoke  was  thrown  off,  the 
spirit  which  characterized  the  exploitative,  despotic  Spanish 
control  still  widely  persists.  The  whole  Spanish  regime  in 
the  South  .American  colonies  was  opposed  to  freedom  and  gave 
no  opportunity  to  their  people  to  develop  the  qualities  of  mind 
and  character  which  are  essential  for  citizenship  in  a  free  state. 
It  is  a  fact  of  supreme  significance  that  the  great  majority  of 
the  people  of  South  America  have  no  sufficient  background 
of  local  self-government,  no  adequate  traditions  of  free  govern- 
ment upon  which  to  build  a  democratic  society.  They  are 
without  e.xpericnce  in  the  processes  of  democracy,  and  have 
little  unrierstanding  of  its  spirit  or  ideals.  They  lack  the  long 
training  that  is  necessary  for  the  successful  operation  of  free 
institutions.  In  this  respect  they  are  notably  different  from 
the  [)eoi)le  of  North  America,  who  have  behind  them  centuries 
of  experience  with  local  self-government  and  long-standing 
traditions  of  jjopular  rights  and  control.      In  the  circumstances 


SOUTH  AMERICA  AND   FREE   GOVERNMENT  659 

it  is  hardly  to  be  wondered  at  that  progress  toward  political 
liberty  has  not  been  more  rapid  in  South  America. 

Another  fact  to  be  noted,  but  which  needs  little  comment, 
is  that  the  great  majority  of  the  people  of  South  America  are 
without  education.  Popular  education  has  been  sadly  neglected, 
even  in  the  most  progressive  states,  with  the  result  that,  con- 
sidering South  America  as  a  whole,  fully  seventy  per  cent  of 
the  inhabitants  are  illiterate.  They  therefore  not  only  lack 
the  inspiration  that  comes  from  attempts  in  the  past  to  acquire 
and  maintain  popular  government  and  equitable  industrial 
conditions,  but  are  without  understanding  of  their  present  prob- 
lems and  needs.  Because  of  the  prevailing  ignorance  there  is 
no  extensive  interest  in  democracy ;  no  general  desire  for  free 
government.  In  a  truly  democratic  society  public  opinion  is 
the  great  controlling  element ;  but  public  opinion,  as  that 
term  is  used  in  North  America  and  in  Europe,  does  not  exist 
in  South  America.  The  ignorance  of  the  people  and  the  gen- 
eral indifference  to  political  and  social  questions  make  an  effec- 
tive public  opinion  impossible,  and  constitute  a  dead  weight 
upon  progress  which  is  superlatively  difficult  to  overcome.  As 
an  eminent  American  sociologist  suggestively  remarks,  there  is 
no  "  people  "  in  the  sense  in  which  that  term  is  commonly  used 
in  the  United  States.^  There  must,  indeed,  be  a  "  people  " 
in  order  to  have  a  public  opinion.  As  would  naturally  be 
expected,  conditions  are  worst  in  tropical  South  America ;  but 
even  in  the  temperate  regions,  where  foreign  influences  are  most 
noticeable,  interest  in  popular  education  and  popular  govern- 
ment is  far  below  the  standard  necessary  for  successful  democ- 
racy. Even  in  Argentina,  which,  on  the  whole,  is  the  most 
progressive  of  the  South  American  states,  government  cannot  be 
said  to  rest  upon  the  will  of  the  people. 

The  absence  of  a  real  public  opinion  is  not  entirely  due, 
however,  to  the  fact  that  the  people  are  without  education. 
The  lack  of  racial  unity  is  a  factor  in  the  problem  which  is  of 
prime  importance.  The  sharp  racial  distinctions  lead  to  antag- 
onisms, prejudices,  and  social  differences  which  make  the 
formation  of  general  public  sentiment  and  the  attainment  of 
united  action  exceedingly  difficult.  Professor  Ross  asserts 
that  "  the  distribution  of  the  population  into  whites,  mestizos, 

'  Ross,  "  South  of  Panama,"'  p.  3,57. 


66o  C0MPARAT1\  i:    1-REE   GOVERNMENT 

and  Indians  makes  well-nigh  impossible  the  emergence  of  a 
general  will  and  of  a  government  truly  retlecting  the  general 
will."  '  This  statement,  however,  is  not  to  be  taken  as  intimat- 
ing that,  because  of  lack  of  racial  unity,  government  controlled 
by  public  opinion  cannot  be  obtained.  The  governments  of 
Switzerland,  Canada,  and  the  United  States  furnish  abundant 
proof  to  the  contrary.  Differences  of  race,  language,  religion, 
and  customs,  divisive  as  they  are  in  their  influence,  are  not  in- 
surmountable barriers  to  unity  of  thought  and  purpose.  In 
the  states  of  South  America  little  effort  has  been  made  to  bring 
the  races  into  harmonious  relations  and  to  develop  in  all  the 
people  an  interest  in  the  common  welfare  and  the  ability  to 
give  expression  to  the  common  will.  That  this  work  of  har- 
monization and  education  must  be  done,  before  efficient  self- 
government  can  prevail,  cannot  be  questioned,  and  in  it  are 
involved  some  of  the  most  vital  problems  confronting  the  pro- 
gressive leaders  of  South  America. 

Still  another  unfortunate  condition  is  found  in  the  existence 
of  caste  and  the  greatest  economic  inequality.  A  wide  and,  as 
yet,  impassable  gulf  separates  those  who  rule  from  those  who  are 
governed  ;  those  who  have  great  wealth  and  live  in  luxury  from 
those  who  have  little  or  nothing  and  live  accordingly.  The 
caste  spirit  is  strong  and  reveals  itself  in  many  forms  of  activity, 
—  social,  industrial,  political.  In  general,  the  land  is  held 
in  great  estates  and  is  worked  for  the  benefit  of  the  landowning 
classes  by  those  who  are  little  better  than  serfs.  Economic 
op[)ortunity  is  for  the  few.  There  exist  the  extremes  of  wealth 
and  luxury  on  the  one  side  and  the  extremes  of  poverty  and 
degradation  on  the  other.  A  virile,  liberty-loving  middle  class 
such  as  has  played  so  big  a  part  in  the  achievement  of  free  gov- 
ernment in  other  lands  is  lacking.  Comparatively  little  free 
agricultural  labor  is  found.  This  is  esi)ecially  the  case  in  the 
West  Coast  countries,  where  "  the  agricultural  ])0])ulation  is 
in  a  state  of  dependence  and  stagnation,  and  there  is  no  such 
class  of  intelligent,  independent  small  farnurs  as  have  con- 
stituted th(!  backbone  of  democracy"  in  ilic  United  States.' 
The  general  industrial  system  has  been  exploitative  in  character, 
little  consideration  being  given,  as  a  rule,  to  the  interests  and 
development  of  the  workers.      The  inllucnce  of  this  u|)on  state 

■  Ross,  ".Soutti  of  I'aiiiirna,"  p.  ,332. 


SOUTH  AMERICA  AND   FREE   GOVERNMENT  66 1 

activities  is  obvious.  The  powers  of  government  have  l)een 
utilized  for  the  protection  and  promotion  of  the  interests  of  the 
governing  classes,  —  the  wealthy  landowners  or  the  designing 
military  leaders  who  command  followers  of  sufficient  strength 
to  place  them  in  power.  It  is  plain  that  the  establishment  of 
democratic  government  in  South  America  will  involve  funda- 
mental social  and  economic  changes. 

Fault  not  with  the  Constitutions.  —  Other  reasons  for  the 
backwardness  of  South  America  from  the  standpoint  of  democ- 
racy might  be  given,  but  those  mentioned  are  sufficient  to 
indicate  the  relatively  slight  advance  that  has  been  made  and 
to  suggest  both  the  fundamental  character  and  the  complexity 
of  the  problems  which  must  be  solved  before  popular  govern- 
ment can  be  attained.  The  fact  is  clear  and  should  be  em- 
phasized again  that  the  fault  of  the  political  delinquency  of 
South  America  does  not  attach  to  the  constitutions  or  to  the 
mechanism  of  government  outlined  in  them.  The  constitu- 
tional forms,  in  the  main  modeled  upon  those  of  the  United 
States,  are  adequate  for  peoples  who  know  how  to  use  them,  but 
the  governments  in  operation,  for  the  reasons  suggested,  fall 
far  below  the  standards  which  the  constitutions  prescribe.  It 
cannot  be  denied  that  the  people,  generally  speaking,  are  not 
prepared  for  citizenship  in  self-governing  commonwealths. 
Indeed,  it  may  be  said  that  the  great  leaders  responsible  for 
the  liberation  of  the  South  American  colonies  from  Spanish  rule 
had  no  real  comprehension  of  the  nature  and  processes  of  free 
government.  They  were  profoundly  impressed  by  the  spirit 
and  achievements  of  the  French  Revolution  and  admired  greatly 
the  Constitution  of  the  United  States,  which  they  accepted  as 
a  model  for  the  constitutions  of  their  own  states ;  but  they  failed 
to  see  how  fundamentally  different  the  conditions  in  South 
America  were  from  those  which  prevailed  in  the  United  States. 
Although  the  purpose  was  high  and  the  spirit  fine,  it  was  in  a 
very  real  sense  a  case  of  the  blind  leading  the  blind.  It  would 
be  a  mistake,  however,  to  conclude  that  the  South  American 
constitutions  are  without  value.  They  embody,  in  large  degree, 
the  ideals  of  self-government  and,  notwithstanding  the  imper- 
fections of  the  governments  that  exist,  they  point  the  way  to 
the  goal  of  liberty  and  are  a  constant  challenge  to  the  cham- 
pions of  democracy  to  press  on  in  the  fight  for  its  ultimate 


662  COMPARATIVE  FREE   GO\^RNMENT 

realization.  The  substantial  advance  that  is  being  made  in  the 
more  progressive  states  gives  assurance  of  the  linal  triumph  of 
the  forces  of  freedom  throughout  the  whole  continent.  This 
advance  has  come  slowly,  but  it  is  real  and  is  steadily  gaining 
in  momentum.  The  great  task  of  all  of  the  South  American 
states  is  to  develop  a  citizenship  which  is  trained  for  its  duties 
and  conscious  of  the  responsibilities  which  free  government 
involves.  This  will  require  many  years  undoubtedly,  but  that 
it  will  be  done  ultimately  can  hardly  be  questioned.  In  time 
South  America  will  be  free. 

REFERENXES 
(For  References,  see  Chap.  LIX.) 


CHAPTER  LVIII 

Cabinet  and  Unitary  Government  in  Chile 

A  study  of  the  formal  constitutions  and  the  actual  opera- 
tion of  the  governments  of  South  America  reveals  the  fact  that 
certain  underlying  principles  of  free  government,  as  exempli- 
fied by  the  free  states  of  Europe  and  North  America,  are  at 
work  and  are  competing  for  supremacy.  The  form  of  govern- 
ment best  suited,  in  the  long  run,  for  the  people  of  South  America 
is  not  yet  determined,  but  the  development  thus  far  is  sufficient 
to  disclose  tendencies  which  point  to  the  probable  outcome. 
It  is  desirable,  therefore,  to  take  brief  notice  of  some  of  the 
outstanding  facts  in  connection  with  governmental  organization. 

Both  types  of  free  government,  cabinet  and  presidential, 
receive  recognition.  The  latter,  due  to  the  influence  of  the 
United  States  at  the  time  the  South  American  colonies  broke 
away  from  Spanish  control,  is  in  form  the  prevailing  type. 
It  may  be  questioned,  however,  whether  either  system  has  been 
applied  under  conditions  which  afford  fair  opportunity  for 
judging  its  merits  as  a  form  of  government  suitable  for  South 
America.  In  fact,  a  really  fair  test  cannot  be  made  of  either 
form  until  a  citizenship  capable  of  self-government  is  developed. 
In  illustration  of  the  manner  in  which  these  main  types  of  free 
government  have  been  utilized,  reference  may  be  made  to  the 
so-called  "A  B  C"  nations  —  Argentina,  Brazil,  and  Chile. 
Following  the  example  of  Europe,  Chile  has  attempted  to  apply 
the  cabinet  principle,  while  Argentina  and  Brazil  have  endeav- 
ored to  develop  presidential  governments. 

In  some  respects,  it  should  be  noted,  cabinet  government  in 
Chile  resembles  the  French  system,  although  there  are  impor- 
tant differences.  It  is  very  unlike  the  government  of  England, 
however.  This  dissimilarity  is  to  be  expected,  considering 
the  fact  that  Chile  and  England  are  so  far  apart  with  respect  to 
the  power  of  the  people  over  the  government.     England,  in  spite 

663 


664  COMPARATIXE   FREE   GOVERNMENT 

of  legal  forms  to  the  contrary,  is  democratic.  Chile,  in  spite  of 
constitutional  forms  to  the  contrary,  is  not  democratic.  It  is 
commonly  said  that  from  one  hundred  to  one  hundred  and  fifty 
leading  families  control  the  Chilean  government.  Public 
opinion  is  not  the  dominant  force  in  the  state.  It  is  plain, 
therefore,  that  cabinet  government  in  Chile  is  more  a  name  than 
a  reality,  for  true  cabinet  government  necessitates  real  popu- 
lar control  through  a  popularly  elected  legislature.  A  brief 
statement  concerning  the  executive  organization  in  Chile, 
and  the  relation  of  the  executive  to  the  legislature,  may  be  made 
to  good  purpose. 

The  President  and  his  Powers.  —  By  the  terms  of  the  Con- 
stitution, the  executive  authority  is  vested  in  the  President  and 
the  Ministers  of  State.  The  President  is  elected  for  a  term 
of  five  years  and  is  ineligible  for  the  next  succeeding  term.  He 
is  chosen  by  an  indirect  process,  similar  to  that  which,  in  form, 
prevails  in  the  United  States.  Electors  are  chosen  by  direct 
popular  vote  by  the  departments  into  which  the  several  prov- 
inces are  divided  for  purposes  of  administration.  These  elec- 
tors meet  at  a  stated  time  and  cast  their  ballots  for  President. 
Records  of  the  votes  taken  are  sent  to  the  Senate  and,  at  the 
time  specified  in  the  Constitution,  arc  ojicncd  and  counted  at 
a  public  joint  session  of  the  Senate  and  House  of  Deputies.  If 
no  person  receives  a  majority  of  all  the  votes,  the  duty  of  select- 
ing the  President  devolves  upon  Congress,  the  procedure  of 
the  election  being  prescribed  in  the  Constitution.  The  Presi- 
dent must  be  a  native  of  Chile,  at  least  thirty  years  of  age,  and 
possess  the  qualifications  necessary  for  membership  in  the  House 
of  Deputies. 

To  the  President,  by  constitutional  provision,  is  confided 
the  administration  and  government  of  the  state.  His  authority 
extends  to  "  everything  which  has  for  its  object  the  preserva- 
tion of  internal  public  order  and  of  the  external  security  of  the 
Republic,  observing  and  causing  others  to  observe  the  consti- 
tution and  the  laws."  '  Many  special  powers  arc  enumerated 
as  belonging  to  him.  Among  these  are  the  powers  to  take 
part  in  the  enactment  of  laws  and  to  approve  and  promulgate 
them ;    to  watch  over  the  official  conduct  of  judges  and  other 

•  Article  72  of  the  Chilean  Constitution.  Dodd,  "Modern  Constitutions,"  Vol. 
I.  p.  2.»s. 


CABINET  AND   UNITARY   GOVERNMENT  IN   CHILE      665 

judicial  oflEicers ;  to  appoint  and  remove  ministers  of  state  and 
departmental  officers,  councilors  of  state  of  his  own  choosing, 
diplomatic  ministers  and  other  foreign  agents,  and  intendants 
of  provinces;  to  command  the  miUtary  and  naval  forces;  to 
declare  war  with  the  previous  approval  of  Congress ;  to  super- 
vise the  collection  and  expenditure  of  pubhc  funds;  to  main- 
tain political  relations  with  foreign  powers,  receive  their  minis- 
ters, and  negotiate  treaties.^  Other  powers  are  named  which 
need  not  be  mentioned  here.  Those  given  are  sufficient  to 
show  that,  as  far  as  the  formal  Constitution  is  concerned,  the 
President  is  a  person  of  great  authority  and  heavy  responsi- 
bilities. 

Ministers  and  Council  of  State.  —  In  connection  with  the 
President  must  be  considered  the  Ministers  of  State,  or  cabinet. 
The  number  of  these  is  not  fixed  by  the  Constitution,  but  by 
law.  Under  the  prevailing  arrangement  there  are  six  minis- 
ters who  are  heads  of  the  following  executive  departments: 
Interior ;  Foreign  Affairs ;  Worship  and  Colonization  ;  Justice 
and  Public  Instruction;  War  and  Marine;  and  Finance,  In- 
dustry, and  Public  Works.  All  orders  of  the  President  must 
be  signed  by  the  minister  of  the  proper  department,  and  with- 
out such  signature  are  invahd.  Ministers  are  "  personally  re- 
sponsible for  all  acts  which  they  sign,  and  collectively  respon- 
sible for  all  acts  subscribed  to  or  agreed  upon  by  them  with  the 
other  ministers."  2  They  may  be  members  of  the  Senate  or 
House  of  Deputies.  If  they  are  not  members  of  Congress,  they 
may  "attend  the  sessions  of  either  house  and  take  part  in  the 
debates,  but  may  not  vote.  They  may  be  removed  by  the 
President  or  impeached  by  Congress. 

Another  body  to  be  noted  in  considering  the  executive  or- 
ganization is  the  Council  of  State.  This  consists  of  twelve 
members,  including  the  President,  who  is  the  Council's  presid- 
ing officer.  Six  of  the  members  are  chosen  by  Congress,  three 
by  each  house.  The  remaining  five  are  appointed  by  the  Presi- 
dent. He  is  not  entirely  free,  however,  in  making  the  appoint- 
ments, but  must  choose  from  among  certain  officers  named  in 
the  Constitution.  Cabinet  ministers  are  ineligible  for  member- 
ship.    The  function  of  the  Council  of  State  is  advisorv  in  char- 

'  Article  7.^ 

*  Artick'  78  of  the  Constitution.    Dodd,  "  Modern  Constitutions,"  Vol.  I,  p.  248. 


666  co:mparative  free  government 

acter,  except  in  those  cases  in  which  the  President  is  required 
to  act  upon  its  advice.  The  President  must  consult  with  it 
upon  some  matters  and  may  do  so  upon  all.  It  has  the  right 
to  propose  the  dismissal  of  ministers  of  state,  intendants,  gov- 
ernors of  departments,  and  other  public  officers,  whom  it  con- 
siders incapable  or  negligent.  By  provision  of  the  Constitu- 
tion the  President  shall  submit  to  the  Council,  for  its  advice, 
all  bills  which  he  desires  to  call  to  the  attention  of  Congress; 
measures  passed  by  Congress  and  sent  to  him  for  his  approval ; 
questions  concerning  which  the  Constitution  requires  that  the 
Council  shall  be  heard ;  the  annual  estimates  of  expenses  to  be 
submitted  to  Congress ;  and  any  other  matters  upon  which  he 
may  wish  to  have  the  Council's  opinion.  For  the  opinions  given 
by  them,  the  councilors  of  state  are  responsible  and  they  may 
be  impeached  if  their  advice  is  contrary  to  the  laws.  They 
do  not  surrender  office  when  a  cabinet  crisis  occurs. 

The  Working  of  the  Cabinet  System.  —  It  is  clear  at  a  glance 
that  the  President,  though  nominally  possessing  large  powers, 
by  no  means  has  a  free  hand  in  the  performance  of  executive 
duties.  He  is  restrained  by  both  the  ministers  and  councilors 
of  state.  Moreover,  the  principle  of  parliamentary  responsi- 
bihty  is  carried  to  extreme.  Congress  is  the  controlHng  element 
in  the  government.  The  President,  with  the  aid  of  the  cabinet 
and  the  advice  of  the  Council  of  St^te,  initiates  legislation  and 
participates  in  the  legislative  process,  but  Congress  determines 
the  fate  of  presidential  measures.  Every  rejection  of  one  of 
these,  important  or  not,  by  Congress  involves  the  resignation 
of  the  cabinet  and  the  formation  of  a  new  ministry.  The  right 
of  appeal  to  the  voters  to  settle  the  dispute  between  the  exec- 
utive and  Congress  does  not  exist.  Because  of  the  deter- 
mination of  Congress  to  rule,  regardless  of  the  fate  of  Presidents 
and  ministers,  cabinets  come  and  go  with  almost  startling 
ra[)idity.  The  instability  of  cabinets  in  Chile  is  far  greater 
than  ever  was  the  case  in  France.  Changes  occur  so  frequently, 
in  fact,  that  they  arc  not  generally  looked  upon  as  serious  or 
even  imf)()rtant.  Tlic  effect  of  this  upon  the  work  of  adminis- 
tration is  obviously  harmful.'     It  would  rec|uire  a  permanent 

'  "The  defect  in  the  present  ("hile.in  system  wliitli  miikes  itself  felt  most  flis- 
aKrce;il)ly  consists  in  the  fref|uent  <  hanRes  of  ministries.  Excessive  instability 
ia  thu»  introduced  not  only  into  parliamentary  and  party  life,  but  into  the  very  ad- 


CABINET  AND   UNITARY   GO\'ERNMENT   IN   CHILE      667 

civil  service  of  high  excellence,  far  superior  to  that  which  pre- 
vails in  Chile,  to  withstand  successfully  the  demoralizing  effects 
of  such  lightning-like  shifts  among  the  heads  of  executive 
departments. 

It  is  to  be  observed  that  these  frequent  cabinet  crises  have 
no  relation  to  a  general  public  opinion  opposed  to  the  policies 
urged  upon  Congress  by  the  President  and  the  ministers.  They 
are  due  to  the  unwillingness  of  a  majority  of  Congress  to  accept 
executive  leadership.  The  consequence  is  a  domination  by 
Congress  such  as  is  hardly  to  be  found  in  any  other  state.  But 
this  domination  is  not  the  result  of  a  popular  demand,  nor  of  a 
clash  between  great  political  parties  upon  important  questions 
of  pubUc  policy.  The  congressional  leaders  are  distrustful  of 
executive  power.  Although  the  President  and  the  ministers 
exercise  a  good  deal  of  authority,  they  are  clearly  the  agents  of 
Congress  and  are  held  accountable  by  it  for  what  they  do. 
Whatever  may  be  the  theory  of  the  Constitution  concerning 
the  relation  of  legislative  to  executive  powers,  in  practice  there 
is  no  balance  or  equilibrium  between  them.  Congress  governs 
in  Chile.  Executive  leadership  of  the  character  called  for  by 
true  cabinet  government  does  not  exist. 

It  is  manifest  that  the  cabinet  principle  has  been  applied 
only  imperfectly  in  Chile  and  the  results  have  been  far  from 

ministration  of  the  republic.  We  have  already  seen  that  ministries  change  on  the 
average  every  four  months.  The  record  figure  of  ministerial  change  in  any  country 
is  certainly  that  of  eighteen  ministers  of  finance  during  one  administrative  period 
of  five  years.  On  account  of  the  confusion  in  Chilean  party  life  a  ministerial  crisis 
happens  far  more  frequently  than  a  real  crisis  of  majorities  in  parliament.  It  has 
been  stated  that  only  one  out  of  every  three  or  four  crises  really  is  the  result  of  a 
displacement  of  majorities  in  the  house.  The  others  depend  on  the  temporary 
shifting  of  groups  and  cliques,  in  which  no  principle  whatever  is  involved.  Such 
changes  rest  entirely  upon  personal  reasons,  upon  a  desire  of  small  groups  of  repre- 
sentatives to  acquire  iniluence  with  the  government,  very  often  for  the  purpose  of 
gaining  a  merely  local  or  personal  advantage.  The  effect  of  this  instability  upon 
the  administration  of  public  affairs  may  be  imagined.  .  .  .  The  ministers  of  state 
lack  continuity  of  experience.  They  are  in  many  cases  young  men  who  have  not  as 
yet  acquired  repre3cntati\e  character,  who  are  put  in  governmental  positions  be- 
cause men  of  wider  experience  refuse  to  submit  to  the  chances  of  political  change. 
The  cabinets,  indeed,  do  always  contain  men  of  real  ability  but  they  by  no  means 
offer  a  field  of  activity  in  which  great  public  characters  may  be  developed  through 
continuity  of  experience  and  through  a  constant  sense  of  responsibility  for  definite 
policies  and  political  principles.  The  tenure  of  the  ministers  docs  not  depend  upon 
their  excellent  conduct  of  affairs,  but  upon  the  shifting  constellations  of  parliamen- 
tary cliques  and  groups."  —  Paul  S.  Reinsch,  "Parliamentary  Government  in 
Chile,"  The  American  Political  Science  Review,  Vol.  in,  p.  527. 


668  COMPARATRE    FREE   GOVERNMENT 

satisf  actor}'.  Naturally,  a  demand,  though  of  uncertain 
strength,  has  arisen  for  a  change  in  the  relations  between  the 
executive  and  legislative  authorities.  For  many  years  the  belief 
has  prevailed  among  some  progressive  leaders  that  a  much 
larger  degree  of  independence  should  be  accorded  the  executive. 
This  was  the  issue,  raised  by  President  Balmaceda,  which  was 
involved  in  the  revolution  of  1891.  The  Congressional  faction 
was  successful  and  Balmaceda's  efforts  came  to  naught.  Senti- 
ment in  favor  of  more  effective  executive  leadership,  however, 
appears  to  be  growing.  The  most  radical  reformers  demand 
the  overthrow  of  the  parliamentary  system,  carried  on  as  it 
has  been  to  an  extreme  which  is  considered  ridiculous,  and  the 
substitution  of  a  presidential  system  similar  to  that  of  the 
United  States.  It  is  held  that  this  is  necessary  in  order  that 
great  national  policies  may  be  formulated  and  successfully 
carried  out.  Little  or  much  may  come,  in  the  long  run,  from 
the  agitation  for  this  reform ;  its  strength  is  merely  a  matter 
for  conjecture.  But  its  continuance  indicates  that  real  dis- 
satisfaction with  the  parliamentary  system  exists,  and  points 
to  an  ultimate  reorganization  of  the  government. 

Chile's  Government  Highly  Centralized.  —  Xot  only  are  the 
two  great  types  of  free  government  given  theoretical  recogni- 
tion in  South  America,  but  also  both  the  unitary  and  federal 
principles  are  utilized.  Chile,  again  showing  the  influence 
of  Euro])e,  particularly  of  France,  has  a  unitary  government 
of  the  extreme  lyi)e  and  may  be  cited  to  illustrate  the  use  of 
the  unitary  form  in  South  America.  Argentina  and  Brazil, 
on  the  other  hand,  again  followed  the  example  of  the  United 
States  and  established  governments  of  the  federal  type.  The 
former  made  use  of  federation  to  unite  provinces  which,  fol- 
lowing independence,  were  inclined  to  maintain  separate  gov- 
ernments; the  latter,  after  the  overthrow  of  the  monarchy, 
deliberately  abandoned  a  unified  government  and  establi.shed 
commonwealths  in  order  to  make  federation  jxissible.  This 
was  a  very  unusual  action  on  the  part  of  Hra/il.  Federation 
was  perhaps  a  logical,  natural  system  for  Argentina  to  accept, 
but  hardly  may  thus  be  characterized  in  the  case  of  Brazil. 

In  no  other  country  of  South  America  has  the  unitary  prin- 
ciple been  carried  to  greater  lengths  than  in  Chile.  It  is  fre- 
quently said  that  a  liighly  cenlrali/.cd  go\ernment  is  the  only 


CABINET  AND   UNITARY  GOVERNMENT  IN  CHILE      669 

kind  that  can  successfully  meet  the  needs  of  Chile,  consider- 
ing the  unusual  character  of  her  territory.  "  The  government 
of  Chile  is  wisely  preserved  as  a  centralized  republic  or  '  uni- 
tary '  system,  in  which  the  system  of  federation  has  been  avoided. 
In  a  country  of  such  vast  longitudinal  extent,  wherein  political 
conditions  would  perforce  have  to  be  made  to  coordinate  with 
chmatic  zones,  the  federal  system  as  enjoyed  by  Mexico  or 
Brazil  could  scarcely  be  conducive  to  national  solidarity."  ^ 
This  statement  may  or  may  not  be  sound ;  opinions  will  differ 
as  to  whether  mere  climatic  variations  are  seriously  inimical 
to  federation.  The  fact  is  clear,  however,  that  extreme  cen- 
tralization, of  the  French  type,  characterizes  the  government 
of  Chile.  By  the  Constitution  the  territory  is  "  divided  into 
provinces,  the  provinces  into  departments,  the  departments 
into  subdelegations,  and  the  subdelegations  into  districts."  ^ 
There  are  twenty-three  provinces  and  one  territory,  which  are 
divided  for  administrative  purposes  into  seventy-five  depart- 
ments. The  subdelegations  number  855,  and  the  districts 
3068.  At  the  head  of  each  province  is  an  intendant,  appointed 
by  the  President.  In  the  words  of  the  Constitution :  "  The 
superior  government  of  each  province  in  all  branches  of  its 
administration  shall  be  vested  in  an  intendant,  who  shall  exer- 
cise his  power  in  accordance  with  the  laws,  and  with  the  orders 
and  instructions  of  the  President  of  the  Republic,  whose  natural 
and  immediate  agent  he  is."  ^  The  intendant's  term  of  office 
is  three  years,  but  he  may  be  reappointed  indefinitely.  Re- 
moval is  by  the  President.  The  government  of  each  depart- 
ment is  vested  in  a  governor,  who  is  subordinate  to  the  intendant 
of  the  province.  Governors  are  appointed  by  the  President 
upon  the  nomination  of  the  respective  intendants.  They 
may  be  removed  by  the  intendants  with  the  approval  of  the 
President.  At  the  head  of  each  subdelegation  is  an  officer 
known  as  subdelegate,  who  is  appointed  by  the  governor  of 
the  department  and  is  responsible  to  him.  The  power  to  re- 
move subdelegates  vests  in  the  governor.  The  districts  are 
governed  by  inspectors  who  are  appointed  by  and  are  under 
the  direction  of  the  subdelegates.     In  each  department,  also, 

I  Enock,  "The  Republics  of  Central  and  South  America,"  p.  304. 
*  Article  106.     Dodd,  "  Modern  Constitutions,"  Vol.  I,  p.  254. 
**  Article  107.     Ibid. 


670  COMPARATIVE   FREE   GOVERNMENT 

municipalities  exist  under  constitutional  authorization.  The 
governor  is  made  the  administrative  head  of  all  municipalities 
in  his  department.  Municipal  ordinances  dealing  with  ques- 
tions recognized  by  the  Constitution  as  coming  within  the 
powers  of  the  municipalities,  must  be  presented  through  the 
intendant  of  the  province  to  the  President  for  his  approval, 
with  the  advice  of  the  Council  of  State. 

From  this  brief  summary  of  the  constitutional  provisions 
relating  to  Chile's  internal  administration,  it  may  be  seen 
how  highly  unified  the  government  is.  The  central  authorities 
control  from  the  top  to  the  bottom  of  the  governmental  system. 
There  is  no  local  self-government  comparable  with  that  which 
is  held  to  be  so  essential  in  the  United  States.  The  results 
of  centralized  control  over  local  affairs  in  Chile  are  not  always 
good.  As  illustrative  of  this  fact  Professor  Ross  makes  this 
interesting  statement :  "  The  Government  of  Chile  relieves 
the  cities  of  the  burden  of  pavement,  sewers,  water-supply, 
fire  protection,  police  and  hospitals,  so  that  the  municipality 
has  nothing  to  do  but  care  for  the  streets  and  parks,  light 
them,  and  provide  band  music.  Its  taxation  is  limited  to 
three  mills  in  the  dollar.  No  doubt,  the  department  of  public 
works  has  given  some  cities  better  water  than  otherwise  they 
would  have.  On  the  other  hand,  German-managed  towns  like 
La  Union  and  Osorno  would  have  good  drinking  water  if  only 
they  might  provide  it  for  themselves ;  but,  thanks  to  their 
dependence  on  remote  Santiago,  their  water  is  bad  and  typhus 
is  rife."  '  The  evidence  is  abundant  that  the  neglect  of  the 
central  government  with  respect  to  local  conditions,  suggested 
in  this  statement,  is  not  confined  to  questions. of  water  supply 
anfl  |)ublic  health.  It  has  fallen  far  short  of  both  its  oppor- 
tunity and  its  duty  with  respect  to  problems  of  education, 
morals,  inrlustry,  and  the  general  social  welfare. 

It  is  important  to  note,  however,  that  the  failures  of  the 
Chilean  government  are  not  due  necessarily  to  the  fact  that  it 
is  unitary  and  ncA  federal  in  character.  The  difiiculty  is 
found  in  the  fact  that  Chile  is  not  democratic  and  those  in 
control  of  the  government  are  not  using  the  powers  of  the 
state  to  promote  the  interests  and  welfare  of  the  mass  of  the 
people.     A    centralized    government    may   l)e    democratic,    as 

'  Ross,  "  South  of  Panama,"  pp.  353-354. 


CABINET  AND   UNITARY   GOVERNMENT  IN   CHILE      67 1 

England  and  France  have  demonstrated,  and  Chile  may  in  time 
meet  her  problems,  both  national  and  local,  effectively  and  in 
the  spirit  of  wholesome  democracy,  without  serious  changes  in 
the  structure  of  her  governmicntal  system.  It  is  a  significant 
thing,  which  will  be  commented  upon  in  the  next  chapter,  that 
the  unitary  or  centralization  principle  is  noticeably  becoming 
stronger  in  South  America.  The  trend  is  away  from  federalism, 
not  toward  it.  However,  if  the  unitary  form  is  to  prove  per- 
manently satisfactory,  it  must  be  thoroughly  democratized  and 
made  to  serve  all  the  people  and  not  merely  the  few  who  govern. 

REFERENCES 
(For  References,  see  Chap.  LIX.) 


CHAPTER  LEV 

Federation  and  Presidential  Government   in  Argentina 

As  previously  stated,  the  federal  form  of  government  finds 
recognition  in  Argentina  and  Brazil.  The  United  States  Con- 
stitution was  a  model  for  both.  In  the  case  of  Argentina  the 
circumstances  out  of  which  federation  developed  were  not 
unlike  those  which  led  to  the  establishment  of  the  great  feder- 
ated republic  in  North  America.  Jealous,  warring  Provinces, 
with  unstable  governments,  had  to  be  united  under  an  adequate 
central  authority  in  order  to  bring  about  peaceful  relations, 
and  maintain  conditions  which  would  admit  of  permanent  polit- 
ical and  industrial  progress.  As  in  the  United  States,  a  uni- 
tary government,  in  the  beginning,  was  impossible.  The  hope 
of  a  satisfactory  adjustment  of  the  troubles  confronting  the 
Provinces  lay  in  a  union  of  the  federal  type,  in  the  control  of 
which  all  should  have  a  fair  voice.  From  the  time  independence 
was  gained  from  Spain  until  i860,  however,  the  political  life 
of  Argentina  was  characterized  by  struggles  between  the  cham- 
pions of  federation  and  the  advocates  of  a  unitary  government. 
Because  of  the  final  acceptance  of  the  federal  i)rinci])lc,  which 
affords  an  interesting  contrast  with  Chile  and  the  other  states 
with  unitary  governments,  as  well  as  for  the  reason  that  Argen- 
tina is  the  most  advanced,  most  progressive  of  the  South  Ameri- 
can states,  it  is  worth  while  to  consider  her  governmental  or- 
ganization in  some  delail. 

The  Provinces  and  the  Nation.  —  As  in  any  federated  gov- 
ernment, a  question  of  fundamental  imjiortance  is  that  which 
involves  the  relation  of  the  Provinces  to  ihc  central  govern- 
ment. It  is  seen  that  this  relation  is  very  similar  to  that  which 
exists  between  the  Stales  and  the  Nation  in  the  United  States. 
Argentina  consists  of  fourteen  Provinces  and  Icn  Territories, 
the  latter  being  completely  under  the  control  of  the  national 
power.     'I'he  Provinces,  in   theory,  are  autonomous  common- 

672 


FEDER.VTION   AND   GOVERNMENT  IN  ARGENTINA      673 

wealths  with  respect  to  their  own  internal  affairs.  The  Con- 
stitution declares  that  they  shall  have  their  own  local  insti- 
tutions and  be  governed  by  them,  and  that  they  shall  elect 
their  governors,  legislators,  and  other  provincial  officers  with- 
out interference  from  the  federal  government.  Article  5  reads : 
"  Each  province  shall  adopt  its  own  constitution  which  shall 
provide  for  the  administration  of  justice  in  its  own  territory, 
its  municipal  system,  and  primary  instruction,  such  constitu- 
tion to  be  framed  upon  the  republican  representative  plan,  in 
harmony  with  the  principles,  declarations,  and  guaranties  of 
the  national  constitution.  Upon  these  conditions,  the  federal 
government  shall  guarantee  to  each  province  the  enjoyment 
and  exercise  of  its  institutions."  ^  The  Provinces,  thus,  are 
free  to  do  as  they  please  within  their  own  constitutional  sphere, 
subject  to  the  right  of  intervention  by  the  national  government, 
to  be  discussed  later ;  but  concerning  the  questions  assigned 
to  the  national  government,  they  have  nothing  to  say.  By 
specific  constitutional  provision,  they  retain  all  powers  not 
delegated  to  the  Nation.  Thus  they  possess  the  inherent  or 
original  powers  of  government  and  the  Nation  has  only  the 
conferred  powers.  The  latter  cover  a  wide  range  of  questions, 
however,  so  that  the  authority  of  the  Provinces  is  greatly 
restricted. 

The  Constitution  places  upon  the  Provinces  a  number  of 
specific  prohibitions.  They  are  forbidden  to  exercise  any 
power  delegated  to  the  Nation ;  declare  or  wage  war  upon  one 
another ;  enter  into  treaties  or  alliances  of  a  political  char- 
acter ;  pass,  laws  relating  to  domestic  or  foreign  commerce  or 
navigation  ;  establish  provincial  custom  houses ;  coin  money ; 
enact  any  civil,  commercial,  criminal,  or  mining  codes,  after 
Congress  has  enacted  such  codes ;  pass  laws  on  the  subjects 
of  citizenship,  naturalization,  bankruptcy,  and  counterfeiting 
of  money  or  forging  of  government  documents  ;  arm  war  vessels 
or  raise  armies,  except  in  case  of  foreign  invasion  or  of  danger 
so  immediate  as  to  admit  of  no  delay ;  appoint  or  receive  for- 
eign agents,  or  admit  new  religious  orders.- 

In  their  relations  to  one  another,  the  Provinces  in  Argen- 
tina hold  a  position  quite  similar  to  that  of  the  commonwealths 
in    the    United    States.     The    Constitution    requires    that    full 

*  Dodd,  "  Modern  Constitutions,"  Vol.  1,  p.  4.       ■  Article  108.     Ibid.,  p.  28. 
2X 


674  COMPARATIVE  FREE   GOVERNMENT 

credit  shall  be  given  in  each  Province  to  the  public  acts  and 
judicial  proceedings  of  all  the  other  Provinces,  under  rules 
prescribed  by  Congress.  The  citizens  of  each  Province  enjoy 
in  all  the  others  the  rights,  privileges,  and  immunities  belong- 
ing to  the  citizens  of  such  other  Provinces.  The  extradition 
of  criminals  is  obligatory  upon  the  Provinces.^  Interference 
with  freedom  of  travel  and  freedom  of  commerce  among  the 
Provinces  is  forbidden.  To  all  of  the  inhabitants  of  the  Nation 
are  guaranteed  the  rights  "  to  work  and  engage  in  any  lawful 
industry ;  to  navigate  and  engage  in  commerce ;  to  petition 
the  authorities ;  to  enter,  remain  in,  travel  through,  or  leave 
the  Argentine  territory ;  to  publish  their  ideas  through  the 
press  without  previous  censorship ;  to  use  and  dispose  of  their 
property ;  to  associate  together  for  useful  purposes ;  freely 
to  profess  their  religion  ;   and  to  teach  and  to  study."  ^ 

Intervention  and  State  of  Siege.  —  In  two  ways,  particularly, 
the  relation  between  the  Provinces  and  the  central  government 
in  Argentina  differs  from  that  which  holds  between  the  common- 
wealths and  the  national  government  in  the  United  States.  In 
Argentina  the  national  government,  under  certain  circumstances, 
may  intervene  in  the  affairs  of  the  Provinces,  and  in  case  of 
domestic  disturbance  or  foreign  attack  may  proclaim  a  state 
of  siege  in  the  Province  or  Territory  involved.  These  are 
important  matters  from  the  standj^oint  of  constitutional  law 
and  deserve  some  consideration,  even  though  the  rights  in- 
volved may  seldom  be  asserted.  They  signify  that  the  Prov- 
inces, even  in  theory,  are  by  no  means  independent  of  the  central 
authority. 

By  the  Constitution  the  national  government  may  intervene 
in  any  Province  for  any  one  of  four  i)urposes :  to  guarantee 
the  republican  form  of  government ;  to  repel  foreign  invasion ; 
to  maintain  the  constituted  authorities  of  the  Province  in  power, 
when  requested  by  them  to  do  .so;  and  to  reestablish  them  if 
they  have  been  flejjosed  by  sedition  or  by  invasion  from  another 
Province.'^  In  the  case  of  the  first  two,  intervention  may  occur 
uf)()n  the  initiative  anrl  at  the  will  of  the  national  executive; 
in  the  last  two,  upon  the  request  of  the  provincial  authorities. 
"  \\'li;it    happens  in   case  of  an   intervention   is   the   following. 

'  Articles  7  and  8.     Dodd,  "  Modern  Conslilutions,"  Vol.  I,  p.  -i. 
*  Article  14.     Ibid.,  v.  5.  '  Article  6.     Ihid..  \>.  .\. 


FEDERATION  AND   GOVERNMENT  IN  ARGENTINA      675 

The  National  Government  sends  to  the  province  an  Interventor 
with  his  secretary  and  other  personnel  requisite,  and,  according 
to  the  circumstances,  accompanied  or  not  by  national  troops 
of  soldiery.  On  arrival  at  the  province,  the  Interventor  be- 
comes the  supreme  authority  and  it  is  his  duty  to  carry  out  the 
objects  of  his  intervention  with  the  least  possible  delay.  He 
inquires  into  the  circumstances  which  have  made  his  inter- 
vention necessary  and  then  takes  steps  to  re-establish  the  repub- 
lican form  of  government,  that  is  to  say,  he  sees  that  the  authori- 
ties provided  by  the  Constitution  are  legally  constituted.  Some- 
times, in  case  of  what  is  called  a  revolution,  his  duty  is  limited 
to  replacing  the  deposed  Government  in  power.  If,  however,  he 
finds  that  the  revolution  is  justified  by  the  actions  of  the  local 
government,  he  declares  the  authorities  deposed  and  calls  for 
fresh  elections.  The  power  of  intervention  is  a  most  serious 
one  and,  practically,  places  the  provincial  governments  in  a 
state  of  dependence  on  the  National  Government,  as  it  will  be 
readily  seen  that,  if  a  provincial  governor  does  not  fall  in  with  the 
views  of  the  National  Executive,  there  is  nothing  easier  than 
to  take  advantage  of  any  local  emeute,  which  is  easily  got  up, 
and  intervene  '  motu  proprio  '  to  restore  the  republican  form 
of  government.  A  sympathetic  interventor  can  be  relied  upon 
to  do  the  rest."  ^ 

The  right  to  proclaim  a  state  of  siege  belongs  to  Congress,  if 
it  is  in  session  when  the  occasion  arises,  and  to  the  President, 
if  Congress  is  not  in  session.  This  procedure  is  authorized  in 
case  of  domestic  disturbance  or  foreign  attack  which  endangers 
the  observance  of  the  Constitution  and  the  safety  of  the  authori- 
ties created  by  it.  During  its  continuance,  constitutional 
guaranties  are  suspended  within  the  Province  or  Territory  in 
which  the  disturbance  occurs.  To  show  the  purpose  and  signifi- 
cance of  the  state  of  siege,  the  words  of  the  writer  last  quoted 
may  be  used.  "  Unfortunately  this  measure  has  had  to  be 
resorted  to  with  much  greater  frequency  than  the  compilers  of 
the  Constitution  ever  contemplated.  The  declaration  of  a 
State  of  Siege  in  Argentina  is  not,  however,  a  declaration  of 
martial  law.  It  is  practically  the  same  thing  as  is,  in  Great 
Britain,  a  suspension  of  the  Habeas  Corpus  Act.  Its  applica- 
tion is  strictly  limited  to  the  National  Government  and  can- 

•  Pennington,  "The  Argentine  Republic,"  pp.  64-67. 


676  COMPARATIVE   FREE   GOVERNMENT 

not  be  usurped  by  the  provincial  authorities.  .  .  .  The  dec- 
laration of  a  State  of  Siege  does  not  give  any  punitive  powers 
to  the  Executive.  The  President  can  neither  condemn  nor 
impose  punishment.  He  can  arrest  any  person  and  convey  him 
to  another  part  of  the  Republic.  In  actual  practice,  when  a 
state  of  siege  is  declared,  the  Press  is  warned  not  to  do  or  pub- 
lish anything  which  may  in  any  way  diminish  the  effects  of  the 
measure.  Any  journal  daring  to  disobey  this  order  is  summarily 
closed  either  for  a  few  days  until  repentant  or  for  the  whole 
period  of  the  suspension  of  the  guaranties.  Foreigners,  who 
may  be  deemed  detrimentals,  are  sent  out  of  the  country  by 
the  authority  of  a  special  law  which  does  not  require  a  state 
of  siege  for  its  application.  Argentine  citizens  are  sent  away 
from  the  district  where  they  have  influence.  Frequently  they 
are  retained  on  board  a  man-of-war  or,  in  extreme  cases,  they 
may  be  sent  down  to  the  cool  regions  of  Tierra  del  Fuego  or 
Staten  Island.  The  declaration  of  a  State  of  Siege  in  no  way 
puts  an  end  to  personal  rights,  except  as  immediately  affected 
by  the  causes  which  have  been  the  ground  of  the  dictation  of 
the  measure.  In  other  respects,  the  constitutional  privileges 
of  every  inhabitant  of  the  country  suffer  no  interruption.  This 
fact  was  very  remarkably  shown  during  the  state  of  siege  de- 
clared in  consequence  of  the  assassination  of  the  Buenos  Aires 
Chief  of  Police.  The  National  Government  declared  a  state 
of  siege  over  the  whole  country  with  the  object  of  dealing  with 
anarchists  and  anarchy.  Several  provincial  governors  took 
advantage  of  the  measure  to  put  in  [)rison  persons  whose  actions 
were  politically  disi)leasing  to  them.  These  governors  had 
their  knuckles  sharply  rapped  by  the  National  Executive  and 
were  ordered,  not  only  to  release  the  persons  whom  they  had 
im[)risoned,  but  also  to  take  no  steps  against  anyone  without 
first  obtaining  the  authority  of  the  Minister  of  the  Interior. 
A  State  of  Siege  must  therefore  not  be  confounded  with  martial 
law,  with  which  extreme  step  it  has  practically  nothing  in 
common."  ' 

The  National  Congress  and  its  Powers.  In  the  organi/.a- 
lion  of  the  national  governmcnl  I  he  principle  of  ihc  separa- 
tion of  [Kjwers  is  followed,  the  authority  of  each  (lcj)artnient  — 
legislative,  executive,  and   judicial    -  being  specifically  stated 

'  I'cnninntDn,  " 'I'hc  Ar>,'cnlinc  Kcpuhlif,"  i)p.  67-68. 


FEDERATION  AND   GOVERNMENT  IN   ARGENTINA      677 

in  the  Constitution  and  protected  against  infringement.  A  brief 
outline  of  the  departments  and  their  constitutional  powers 
will  be  given. 

The  Congress,  in  which  is  vested  the  legislative  power  of 
the  Nation,  is  composed  of  two  houses,  the  Senate  and  the 
House  of  Deputies.  The  Senate  is  representative  of  the  Prov- 
inces and  the  national  capital,  each  Province  and  the  capital 
being  entitled  to  two  Senators.  Those  from  the  Provinces 
are  elected  by  a  plurality  of  votes  of  the  respective  provincial 
legislatures,  while  those  from  the  capital  are  chosen  by  an  elec- 
toral college,  such  as  is  employed  for  the  selection  of  the  Presi- 
dent. The  term  of  office  is  nine  years,  one  third  of  the  mem- 
bership being  chosen  every  three  years.  Senators  are  eligible 
for  reelection  indefinitely.  The  qualifications  for  election  as 
Senator,  as  prescribed  in  the  Constitution,  are  the  attainment 
of  the  age  of  thirty ;  citizenship  in  the  Nation  for  six  years ; 
an  annual  income  of  two  thousand  pesos  in  coin  or  an  equivalent 
amount  of  capital ;  and  nativity  in  the  Province  which  elects 
him  or  residence  therein  for  the  two  years  immediately  pre- 
ceding. Each  Senator  has  one  vote.  The  Vice  President  of 
the  Nation  is  the  presiding  ofl&cer  in  the  Senate,  but  has  no 
vote  except  in  case  of  a  tie. 

The  House  of  Deputies  is  representative  of  the  people  of  the 
Provinces  and  of  the  capital.  Its  members  are  chosen  by  direct 
vote,  a  simple  plurality  being  sufficient  to  elect.  The  constitu- 
tional unit  of  representation  is  one  deputy  for  every  thirty- 
three  thousand  inhabitants  or  fraction  thereof  not  less  than  six- 
teen thousand  five  hundred.  After  each  census,  which  shall 
not  be  taken  more  than  once  in  every  ten  years,  Congress  is 
required  to  fix  the  ratio  of  representation  upon  the  basis  of  such 
census ;  this  ratio  may  be  increased  beyond  the  constitutional 
unit,  but  not  diminished.  The  manner  of  election  is  prescribed 
by  a  general  law  of  Congress.  Deputies  must  be  twenty-five 
years  of  age,  citizens  of  the  Nation  for  four  years,  natives  of  the 
Provinces  from  which  they  are  chosen  or  residents  thereof  for 
the  two  preceding  years.  They  serve  for  four  years  and  are 
eligible  for  reelection,  one  half  of  the  members  being  elected 
every  two  years. 

The  regular  session  of  Congress  begins  on  the  first  day  of  May 
of  each  year  and  continues  until  the  thirtieth  of  September. 


678  COMPARATI\'E   FREE    GOVERNIMENT 

Extraordinary  sessions  may  be  called  or  the  regular  sessions  may 
be  extended  by  the  President.  Each  house  is  judge  of  the  quali- 
fications and  elections  of  its  own  members  and  determines  its 
o\vn  rules  of  procedure.  Neither  house  is  permitted  to  transact 
business  without  the  presence  of  a  majority  of  all  its  members. 
The  remuneration  of  Senators  and  Deputies  is  fixed  by  law  and 
is  paid  out  of  the  funds  of  the  national  treasury.  The  initiation 
of  laws  relating  to  taxes  and  to  the  recruiting  of  troops  belongs 
exclusively  to  the  House  of  Deputies,  as  does  the  right  to  vote 
impeachments.  The  trial  of  impeachment  cases  is  by  the 
Senate.  Members  of  religious  orders  are  prohibited  from  serving 
in  Congress  and  provincial  governors  may  not  represent  their 
Provinces  during  their  terms  of  office.  Members  of  Congress 
are  forbidden  to  receive  appointments  or  commissions  from  the 
executive  without  first  obtaining  the  consent  of  the  house  to 
which  they  belong.  The  customary  freedom  from  arrest  during 
sessions  of  Congress  and  from  responsibility  for  the  things  said 
in  the  discharge  of  their  duties,  arc  accorded  members  of  both 
houses. 

Laws  originate  in  either  house  by  means  of  bills  introduced 
by  the  members  or  by  the  executive.  A  bill  passed  by  both 
houses  is  sent  to  the  President  for  his  approval.  If  he  approve, 
the  legislative  process  is  completed  and  the  measure  is  promul- 
gated as  law.  Ten  working  days  are  allowed  the  President 
in  which  to  consider  a  measure  submitted  to  him.  If  it  is  not 
returned  within  that  time,  the  bill  becomes  a  law  without  execu- 
tive approval.  The  President's  veto  may  apply  to  a  bill  wholly 
or  in  i)art.  A  measure  thus  rejected  must  be  returned  to  the 
house  in  which  it  originated,  with  a  statement  giving  the  reasons 
for  executive  disapproval.  To  overcome  the  veto  a  two-thirds 
majority  is  necessary  in  each  house.  The  vote  upon  a  bill  vetoed 
by  the  President  must  be  by  yeas  and  nays,  and  the  names  of  the 
members  voting,  together  with  the  reasons  upon  which  their 
votes  were  based,  and  the  objections  of  the  President,  must  be 
immediately  i)ublisheri  in  the  press. 

The-  conslitulional  powers  of  Congress  cover  a  wide  range  of 
questions.  It  is  unnecessary  to  give  these  in  detail,  but  mention 
may  be  made  of  the  [)ower  to  impose  import  and  export  duties, 
which  shall  be  uniform  throughout  the  Nation  ;  to  levy  direct 
taxes  when  occasion  ck-niands ;    U>  borrow  money  on  the  credit 


FEDERATION  AND   GOVERNMENT  IN  ARGENTINA      679 

of  the  Nation ;  to  arrange  for  the  payment  of  the  Nation's  debt 
and  provide  for  its  fiscal  needs ;  to  grant  subsidies  to  those 
Provinces  whose  revenues  are  insufficient  to  meet  their  ordinary 
expenses;  to  regulate  the  free  navigation  of  rivers;  to  coin 
money  and  adopt  a  uniform  system  of  weights  and  measures ; 
to  enact  civil,  commercial,  penal,  and  mining  codes ;  to  pass 
general  laws  on  naturalization,  citizenship,  bankruptcy,  counter- 
feiting of  money,  and  establishment  of  trial  by  jury ;  to  regulate 
commerce  among  the  Provinces  and  with  foreign  nations ;  to 
establish  and  regulate  post  offices  and  post  roads  ;  to  govern  the 
national  Territories  and  create  new  Provinces ;  to  establish 
national  courts  inferior  to  the  Supreme  Court  of  Justice ;  to 
authorize  the  executive  to  declare  war  or  to  make  peace ;  to 
approve  or  reject  treaties  with  other  nations ;  to  provide  for 
the  military  and  naval  forces  of  the  Nation  and  establish  regu- 
lations for  their  government ;  to  proclaim  a  state  of  siege  in  one 
or  more  places  in  the  Nation  in  case  of  internal  disorder  and  to 
authorize  the  calling  out  of  the  militia  of  any  or  all  of  the  Prov- 
inces if  the  need  arises ;  and  to  make  all  laws  and  regulations 
which  shall  be  necessary  for  carrying  into  execution  the  powers 
granted  to  Congress  and  all  other  powers  vested  by  the  Constitu- 
tion in  the  government  of  the  Argentine  Nation.  It  is  impossible 
here  to  discuss  the  constitutional  law  of  Argentina  from  the 
standpoint  of  legislative  authority,  but  it  is  plain  that  the  powers 
of  Congress  are  exceedingly  broad  and  include  all  matters  that 
are  not  distinctly  local  and  provincial  in  character.  As  far  as 
the  Constitution  is  concerned,  Congress  is  representative  of  the 
people,  through  the  electorate,  and  the  way  is  open  for  effective 
public  control  in  all  great  questions  of  national  policy.  The 
Congress,  in  composition,  organization,  and  powers,  is  adequate 
as  an  instrument  of  democracy ;  the  need  in  Argentina,  as  in 
all  of  the  South  American  states,  is  for  an  intelligent,  responsible, 
efficient  citizenship. 

The  Executive  Department.  —  The  executive  power  of  Ar- 
gentina is  vested  in  the  President,  who  is  assisted  by  eight 
ministers  or  secretaries.  Provision  is  made  for  a  Vice  President 
to  take  the  place  of  the  President  in  case  of  the  latter's  illness, 
absence  from  the  capital,  death,  resignation,  or  removal.  Both 
of  these  officers  are  chosen  by  an  indirect  process,  almost  identical 
with  that  which  is  prescribed  by  the  Constitution  of  the  United 


68o  COMPARATIVE  FREE   GOVERNMENT 

States  for  the  election  of  President  and  Vice  President.  The 
capital  and  each  of  the  Provinces  elect,  by  direct  vote,  an  elec- 
toral college  which  consists  of  twice  as  many  members  as  the 
number  of  Senators  and  Deputies  constituting  their  respective 
representation  in  Congress.  Members  of  Congress  and  officials 
receiving  pay  from  the  federal  government  are  disqualilied  from 
serving  as  presidential  electors".  Four  months  before  the  expira- 
tion of  the  presidential  term,  the  electors  chosen  by  the  Provinces 
meet  in  their  respective  provincial  capitals,  and  those  chosen  by 
the  capital  in  the  capital,  and  proceed  to  elect  by  signed  ballots 
the  President  and  Vice  President,  separate  ballots  being  used. 
Two  lists  are  made  of  all  the  persons  named  for  President  and 
two  of  those  named  for  Vice  President,  with  the  number  of  votes 
cast  for  each.  Two  of  these  lists,  one  of  each  kind,  properly 
authenticated,  are  sent  to  the  president  of  the  Senate,  and  the 
other  two  are  filed  with  the  president  of  the  provincial  legislature, 
and,  in  the  case  of  the  capital,  with  the  president  of  the  munic- 
ipality. In  the  presence  of  both  houses  of  Congress,  the  ballots 
are  opened  by  the  president  of  the  Senate  and  are  counted  by 
four  members  of  Congress  selected  by  lot.  Those  receiving  in 
each  case  an  absolute  majority  of  all  the  votes  are  immediately 
proclaimed  President  and  Vice  President.  If  no  one  receives 
the  necessary  majority.  Congress  is  authorized  to  elect,  by  verbal 
vote,  one  of  the  two  i)ersons  receiving  the  highest  number  of 
votes.  If  the  highest  vote  is  in  favor  of  more  than  two  persons, 
Congress  must  make  its  choice  from  among  all  of  them.  This 
choice  must  be  made  by  an  absolute  majority.  In  case  of  a  tie, 
the  vote  is  repeated  immediately,  and  if  it  again  results  in  a  tie, 
the  president  of  the  Senate  casts  the  deciding  ballot.  The 
election  must  be  concluded  in  a  single  sitting  of  Congress,  the 
presence  of  three  fourths  of  all  the  members  being  necessary. 

The  President  is  made  the  chief  magistrate  of  the  Nation  and 
is  given  charge  of  its  general  administration.  He  is  given  power 
to  issue  instructions  and  regulations  necessary  for  the  execution 
of  the  laws ;  to  assist,  in  the  manner  prescriberl  in  the  Constitu- 
tion, in  making  the  laws  and  to  promulgate  them  ;  the  power  to 
veto,  wholly  or  in  part,  measures  which  he  flisaj)proves ;  to 
grant  pardons  and  commute  ])unisliments  in  cases  subject  to 
federal  jurisdiction,  excej)t  imix-achments ;  to  ai)point  and 
remove,  with  the  advice  of  the  Senate,  the  Nation's  diplomatic 


FEDERATION  AND  GOVERNMENT  IN  ARGENTINA   68 1 

representatives,  and  by  himself,  without  senatorial  action,  min- 
isters of  state,  officials  of  the  departments,  consular  agents,  and 
all  other  government  employees  whose  appointment  is  not  other- 
wise provided  for  by  the  Constitution ;  to  open  the  annual 
sessions  of  Congress  and  to  recommend  legislation  which  he  con- 
siders necessary  and  expedient ;  to  extend  the  regular  session  of 
Congress  or  summon  it  in  extraordinary  session ;  to  supervise 
the  collection  and  expenditure  of  public  funds  as  provided  by 
law;  to  negotiate  treaties  and  receive  foreign  ministers  and 
consuls ;  to  command  the  land  and  naval  forces  of  the  Nation ; 
to  declare  war,  with  the  authority  and  approval  of  Congress; 
and  to  declare,  with  the  consent  of  Congress,  a  state  of  siege, 
in  case  of  foreign  invasion,  and  upon  his  own  authority,  when 
Congress  is  not  in  session,  in  case  of  internal  disorders.^ 

The  President  is  assisted  by  the  ministers  of  state,  who,  by 
the  constitution,  "  shall  have  charge  of  the  affairs  of  the  nation, 
and  shall  countersign  and  attest  the  acts  of  the  President  by 
means  of  their  signatures."  -  This  countersignature  is  necessary 
for  the  validity  of  the  President's  acts.  Each  minister  is  indi- 
vidually responsible  for  the  acts  signed  by  himself  and  jointly 
with  the  other  ministers  for  all  acts  agreed  upon  between  him  and 
his  colleagues.  Individual  action,  on  the  part  of  a  minister,  is 
confined  to  the  internal  affairs  of  his  own  department,  the  work 
of  which  is  prescribed  by  law.  Ministers  are  required  to  submit 
detailed  reports  to  Congress  at  the  beginning  of  each  session. 
They  may  attend  the  sessions  and  take  part  in  the  debates, 
but  do  not  have  the  right  to  vote.  No  minister  may  serve  either 
in  the  Senate  or  the  House  of  Deputies  without  first  resigning 
his  position  as  minister.^  The  ministers  do  not  constitute  a 
cabinet  in  the  parHamentary  sense.  Their  position  is  similar 
to  that  of  the  President's  cabinet  in  the  United  States.  Unlike 
the  latter,  however,  they  have  definite  constitutional  status. 
The  departments  which  the  ministers  direct  are  as  follows :  In- 
terior ;  Foreign  Affairs  and  Public  Worship ;  Finance ;  Justice 
and  Public  Instruction;  War;  Marine;  Agriculture;  Public 
Works. 

The  Judiciary.  —  The  judicial  power  of  Argentina  is  vested 
in  a  Supreme  Court  of  Justice  and  in  such  inferior  courts  as 

'Article  86  of  the  Constitution.  Dodd,  "Modern  Constitutions,"  Vol.  I,  pp. 
23-25-  2  Article  87.     //-/'/.,  p.  25.  '  .\rticles  88-93.     Ibid.,  p.  26. 


682  COMPARATIVE  FREE   GOVERNMENT 

Congress  may  establish.  The  President  is  specifically  forbidden 
to  exercise  judicial  functions.  The  judges  of  the  Supreme  Court 
and  of  the  inferior  courts,  appointed  by  the  President  with  the 
approval  of  the  Senate,  hold  their  office  during  good  behavior, 
and  are  subject  to  impeachment  by  the  House  of  Deputies. 
No  person  is  eUgible  for  membership  in  the  Supreme  Court  who 
is  not  a  lawyer  with  at  least  eight  years'  practice  in  the  national 
courts,  and  who  does  not  have  in  addition  the  qualifications 
necessary  to  be  a  Senator.  The  Supreme  Court  makes  its  own 
rules  of  procedure  and  appoints  its  subordinate  employees. 
Rules  for  the  inferior  federal  courts  may  be  prescribed  by  Con- 
gress. The  important  lower  courts,  established  by  Congress, 
are  the  Appeal  Courts  and  the  Inferior  Courts  or  Courts  of  First 
Instance.  Each  Province,  of  course,  has  its  own  judicial 
system. 

The  constitutional  jurisdiction  of  the  Argentine  national 
courts  is  very  much  like  that  of  the  federal  courts  in  the  United 
States.  It  extends  to  all  cases  arising  under  the  Constitution, 
the  laws  of  Congress,  or  treaties  with  foreign  nations ;  to  cases 
concerning  ambassadors,  public  ministers,  and  foreign  consuls ; 
to  admiralty  and  maritime  causes ;  to  controversies  to  which  the 
Nation  is  a  party ;  and  to  cases  which  arise  between  two  or  more 
Provinces,  between  one  Province  and  citizens  of  another  Prov- 
ince, between  citizens  of  different  Provinces,  and  between  a 
Province  or  its  citizens  and  a  foreign  state  or  its  citizens.  In 
all  cases  concerning  foreign  ambassadors,  ministers,  and  consuls, 
and  in  those  to  which  a  Province  may  be  a  party,  the  Supreme 
Court  has  original  and  exclusive  jurisdiction.  In  all  other 
cases,  it  has  ap{)ellale  jurisdiction  under  such  rules  and  excep- 
tions as  Congress  may  establish. 

The  Government  in  Operation.  —  It  is  of  especial  importance 
to  l)ear  in  mind  that  the  government  of  Argentina,  as  described 
in  the  foregoing  [)aragraphs,  is  the  government  as  outlined  in  the 
formal  Constitution.  The  government  in  actual  operation 
differs  from  this  very  materially.  This  is  true,  as  has  been 
pointefl  out,  in  all  of  the  states  of  South  America;  indeed,  it  is 
true  to  a  greater  or  less  degree  of  all  nations  that  have  formal, 
written  constitutions.  In  the  case  of  the  South  American  states, 
however,  the  departures  from  constitutional  forms  have  fre- 
quently involved  practices  that  are  far  less  democratic  than  those 


FEDERATION   AND   CJOVERNMENT  IN   ARGEN'JTNA      683 

which  the  Constitutions  prescribe,  whereas  in  other  countries,  the 
United  States  for  instance,  extra-constitutional  practices  have  de- 
veloped as  a  result  of  a  growing  democracy.  In  Argentina,  as  in 
Chile,  Brazil,  and  other  countries  of  South  America,  representa- 
tive government  has  fallen  far  short  of  the  requirements  of  the 
Constitution.'  The  balance  among  the  departments,  demanded 
by  the  doctrine  of  the  separation  of  powers,  is  by  no  means 
maintained.  The  executive  dominates  the  government  to  a 
degree  not  contemplated  by  the  framers  of  the  Constitution. 
Particularly  the  President  is  unduly  influential  in  the  selection 
of  his  successor.  Indeed,  not  infrequently  he  is  able  to  dictate 
his  successor  through  the  control  which  the  government  party 
has  over  presidential  elections.  Judicial  administration  is 
notably  weak  and  often  corrupt.  This  is  especially  the  case 
with  the  lower  courts,  but  even  the  standing  of  the  Supreme 
Court  is  far  below  what  it  should  be.  Public  opinion  does  not 
control  the  government.  Popular  interest  in  the  election  of 
public  ofiicers  is  lax.  In  spite  of  a  system  which  makes  use  of  a 
secret  ballot  and  of  compulsory  voting,  large  numbers  of  voters 
do  not  participate  in  the  elections.  The  power  of  the  caudillo, 
or  political  boss,  is  great,  and  party  life  can  hardly  be  said  to 
exist.  The  Socialists  alone  seem  to  constitute  a  real  party. 
Corruption  and  force  are  frequently  resorted  to  in  elections. 
The  government,  though  more  liberal,  more  democratic  than 
that  of  Chile  and  most  of  the  other  governments  in  South 
America,  is  nevertheless  undemocratic,  as  yet,  in  spirit  and 
methods.  In  the  Provinces  as  well  as  in  the  Nation  political 
authority  is  in  the  hands  of  the  few,  and  not  in  the  possession 

1  "However  generous  any  particular  constitution  may  be  in  allowing  for  the 
participation  of  the  people  at  large  in  government,  the  fact  remains  that,  to  all 
intents  and  purposes,  the  Latin-American  countries  are  ruled  cither  by  a  virtual 
autocrat  whose  effective  support  comes  from  certain  classes  and  not  from  the  great 
body  of  the  people  themselves,  or  else  by  a  relatively  small  number  of  persons  iden- 
tified with  the  interests  of  the  wealthy  and  the  well  educated.  Professional  men, 
rather  than  those  concerned  primarily  in  industrial  pursuits,  are  apt  to  be  the  domi- 
nant factor  in  politics. 

"Possibly  the  two  kinds  of  actual  government  in  rjucstion  are  the  only  ones  that 
are  feasible  under  present  conditions.  To  establish  a  more  liberal  system,  so  long 
as  the  masses  remain  uneducated,  might  be  unwise.  The  Lalin-.\merican  govern- 
ments, at  all  events,  do  not  appear  to  rest  on  the  people,  broadly  speaking,  but  only 
on  the  'political'  people,  on  that  portion  of  the  population  which  is  believed  to  possess 
the  knowleflge  and  intelligence  needful  to  enable  its  members  to  assume  an  active 
share  in  public  life."  —  Shepherd,  "  Latin  America,"  pp.  142-143. 


684  COMPARATIVE   FREE   GOVERNMENT 

of  the  common  people.  Federation  has  not  worked  out  as 
planned  in  the  Constitution.  The  national  government  has 
dominated  provincial  politics  to  a  high  degree.  The  central 
government  has  extended  its  activities  so  widely,  in  fact,  that  it 
"  threatens  to  throw  the  federal  system  out  of  balance."  ^  In 
practice,  therefore,  the  unitary  principle  has  prevailed  to  a  large 
extent,  and  a  tendency  away  from  federalism  seems  clearly 
discernible. 

Argentina  Becoming  Free.  —  But  when  all  of  the  adverse 
criticisms  of  Argentina  are  made,  and  the  fact  is  demonstrated 
that  the  theory  and  practice  of  her  government  are  widely 
divergent,  it  must  still  be  admitted  that  she  is  moving  steadily 
forward  to  a  better  political  and  social  order.  The  spirit  of 
democracy  is  developing,  and  a  demand  for  general  social  im- 
provement is  growing.  Though  the  control  of  the  government 
has,  in  large  measure,  been  somewhat  oligarchic  in  character, 
yet  the  domination  of  the  wealthy  landowners  has  been  far  less 
complete  than  in  Chile  and  other  South  American  states. 
Many  governmental  projects,  particularly  in  the  promotion  of 
internal  improvements,  such  as  railways  and  irrigation  works, 
have  been  carried  through  which  were  clearly  not  beneficial  to 
the  great  landed  interests.  .Mthough  the  percentage  of  illiteracy 
is  high,  amounting  to  fully  fifty  per  cent,  yet  the  standard  of 
education  is  superior  to  that  of  any  other  South  American  nation 
and  is  slowly  being  raised.  While  it  is  true  that  the  interests 
of  property  have  commonly  been  given  more  consideration  than 
those  of  humanity,  yet  much  labor  and  social  welfare  legislation 
of  an  advanced  type  has  been  enacted.  The  development  of  the 
Socialist  movement  is  indicative  of  a  growing  social  unrest  and 
points  to  a  larger  democracy  both  in  government  and  in  industry. 
Argentina,  in  fact,  has  made  rapid  and  very  substantial  progress, 
particularly  from  the  material  point  of  view,  but  rt  seems  certain 
that  the  future,  f)erhaps  the  near  future,  is  to  witness  a  develop- 
ment that  will  greatly  transcend  her  [)resent  attainments.  She 
is  in  the  process  of  becoming  a  great  free  state  and  is  attaining  a 
place  of  influence  among  the  nations  of  the  world. 

Argentina  Contrasted  with  Australia.  —  Professor  Ross  quotes 
a  suggestive  comparative  statement  made  by  the  eminent  sociol- 
ogist, Ernesto  Quesada,  on  return  from  a  visit  to  Australia,  with 

'  Ross,  "  Soutli  «f  I'anama,"  p.  348. 


FEDERATION   AND   GOVERNMENT  IN   ARGENTINA      685 

the  remark  that  "  there  is  no  better  appraisal  of  the  Argentine 
state."     The  statement  follows  : 

"  There  as  here  immense  territory  and  sparse  population. 
There  as  here  stock-raising  and  agriculture  lead  while  manu- 
facturing is  secondary.  In  the  one  country  as  in  the  other  is 
forming  a  new  race ;  there  homogeneous,  here  heterogeneous. 
The  economic  and  social  problems  are  the  same  in  both  countries, 
but  their  solution  is  diametrically  opposed :  here,  the  individual- 
istic criterion  governs,  there  the  socialistic. 

"  Both  are  countries  of  immigration :  but  there  it  is  retarded 
by  racial,  linguistic  and  social  standards,  while  here  the  gates 
are  open  to  all.  Both  export  meat  and  grain,  but  there  the  State 
fosters  production  and  exportation,  while  here  they  are  left  to 
individual  initiative.  Both  borrow  foreign  capital,  but  there 
the  loans  are  expended  in  productive  works  and  the  State  assumes 
the  administration  of  undertakings  of  a  monopolistic  nature, 
such  as  transportation,  insurance,  refrigeration  and  like  in- 
dustries, representing  a  business  based  on  the  interest  of  the 
community ;  while  here  the  State  divests  itself  of  the  conduct  of 
such  enterprises  even  if  perchance  it  has  them  in  its  hands, 
as  once  it  had  certain  railways,  and  leaves  to  private  enterprise 
such  important  public  services  as  telephones,  lighting,  and 
docks.  There  no  danger  of  trustification  of  any  industry  because 
the  State  intervenes  and  assumes  its  management ;  here  private 
capital  is  left  free  to  combine,  in  form  more  or  less  covert,  and 
constitute  true  monopolies.  There  the  absence  of  great  private 
companies  conducting  public  industries  which  employ  thousands 
of  persons  makes  unknown  the  political  influence  which  these 
inevitably  exercise ;  here  such  companies  wield  a  considerable 
influence,  which  they  may  be  tempted  to  use,  by  means  of  the 
vote  of  their  employees  or  by  the  natural  seduction  of  favors 
direct  or  indirect,  to  the  injury  of  democracy.  There  the  settlers 
are  aided  with  loans  from  the  public  treasury ;  here  they  are 
abandoned  to  the  banks  and  the  private  money  lenders.  There 
likewise  certain  agricultural  or  stock-raising  industries  are  helped 
by  the  credit  of  the  State ;  here  the  State  does  not  intervene 
in  what  is  considered  to  be  a  matter  of  private  concern.  There 
despite  such  financial  interventions  the  Treasury  reports  regu- 
larly show  a  surplus ;  here,  in  spite  of  withholding  public  money 
from  such  purposes,  they  generally  close  with  a  deficit. 


686  cojNiPAR.vrnE  free  government 

"  Finally,  —  to  sum  it  all  up,  —  there  the  functions  of  the 
State  are  extended  wherever  the  public  welfare  requires  it,  and 
no  individual  right  is  valid  as  against  that  of  the  collectivity ; 
here  the  radius  of  government  action  is  limited  and  the  State 
maintains  intact  the  private  right  of  each  which  the  general 
interest  may  not  set  aside."  ^ 

Tendency  Toward  Centralization.  —  In  conclusion,  attention 
should  be  directed  to  what,  from  the  standpoint  of  governmental 
organization,  is  the  most  significant  tendency  in  Argentine 
political  life,  —  the  tendency  to  develop  a  unified,  centralized 
government.  This,  however,  is  not  peculiar  to  Argentina,  for, 
taking  the  South  American  states  as  a  whole,  it  is  uncjuestionable 
that  centralization  is  the  outstanding  feature  of  government. 
The  fact  of  special  importance  in  the  case  of  Argentina  is  that 
federalism,  formally  accepted  as  the  basic  principle  of  the  con- 
stitutional system  after  years  of  struggle  between  the  federalists 
and  the  unitarians,  is  giving  way  before  the  advance  of  a  develop- 
ing nationalism.  Whether  or  not  this  will  continue  until  the 
final  overthrow  of  federation  and  the  acceptance  of  a  unitary 
government,  no  one  can  say.  The  tendency,  however,  is  plain. 
Federation,  without  doubt,  is  weaker  than  it  used  to  be;  cen- 
tralized government  is  stronger. 

The  question  naturally  arises  as  to  the  reasons  for  this  devel- 
opment. Several  points  should  be  noted :  the  ignorance  of 
the  mass  of  the  people;  the  lack  of  interest  in  public  affairs; 
the  general  absence  of  traditions  of  local  self-government ;  the 
survival  of  autocratic  ideas  and  practices  developed  during  the 
colonial  regime;  the  effect  of  the  prevailing  legal  system  upon 
governmental  organization  and  methods ;  the  influence  of  con- 
tinental Europe  ;  and,  particularly,  the  influence  of  France  in  her 
attemi)ts  to  erect  a  free  government  upon  the  ruins  of  an  abso- 
lutism largely  identical  with  that  which  so  long  characterized 
the  rule  of  Spain  both  at  home  and  in  the  South  American  col- 
onies. It  is  to  be  observed,  however,  that  these  suggestions  are 
not  [jcrtinent  in  connection  with  Argentina  alone ;  they  aj)f)ly  with 
equal  force  to  the  other  South  American  states.  Some  of  them 
have  already  been  discussed  and  need  only  be  mentioned  here. 

Influence  of  France  and  the  Roman  Law.  Two  jioints, 
though,  descrsf  special  enipliasis :   llic  cUcct  of  the  Roman  Law 

'  Ross,  "  South  of  I'iinama,"  pp.  383-385. 


FEDERATION  AND   GOVERNMENT  IN  ARGENTINA      687 

system  upon  government,  and  the  influence  of  France.  The 
former  is  discussed  at  length  in  a  preceding  chapter ;  all  that  is 
necessary  here  is  to  suggest  the  applicability  of  the  ideas  there 
developed  to  the  political  life  of  South  America.^  It  was  pointed 
out  that  political  institutions  in  countries  accepting  the  Roman 
jurisprudence  are  different  from  those  of  countries  in  which  the 
English  Common  Law  is  basic.  In  the  two  systems  the  emphasis 
upon  public  rights  and  upon  private  rights  differs.  Under  the 
former,  the  executive  branch  of  the  government,  under  the  latter, 
the  legislative  branch,  is  the  dominant  element.  In  other 
words,  administrative  control,  in  general,  characterizes  Roman 
Law  nations,  while  legislative  control  characterizes  Common 
Law  countries.  It  is  to  be  expected,  therefore,  that  presidential 
government  in  Argentina,  and  cabinet  government  in  Chile,  will 
develop  along  lines  which  are  materially  different  from  those 
followed  respectively  in  the  United  States  and  England,  just  as 
cabinet  government  in  France  differs  fundamentally  from  the 
English  system  upon  which  it  was  modeled.  Centralization 
is  natural  in  South  America,  and  it  seems  safe  to  assume  that  it 
will  permanently  characterize  the  governments  of  her  states. 
The  problem  in  South  America,  as  has  been  the  problem  in 
France,  is  to  democratize  centralized  government ;  to  develop 
democracy  from  the  top  downward,  —  the  reverse  of  the  process 
in  England  and  the  United  States.  In  this  development  the 
example  of  France  is  markedly  influential.  People  of  education 
and  culture  throughout  South  America  speak  the  French  lan- 
guage and  are  familiar  with  French  literature  and  French  politi- 
cal experience.  They  find  in  the  history  and  development  of 
France  inspiration  for  the  settlement  of  their  own  respective 
national  problems.  Indeed,  it  seems  to  be  a  fact  that  France, 
more  than  any  other  nation,  is  marking  the  path  which  the  South 
American  states  are  to  follow  in  their  efforts  to  attain  free 
institutions.  The  signs  discernible  by  a  careful  study  of  the 
political  life  of  South  America  point  to  the  ultimate  achieve- 
ment of  governments  of  the  French  type,  —  of  centralized 
democracies. 

» Chap.  XLIX. 


688  COMPARATIX'E   FREE   GOVERNI^IENT 


REFERENCES 

Clemenceau.    South  America  To-day. 

DoM\TLLE-FiFE.     Great  States  of  South  Avierica. 

ExocK.     The  Republics  of  South  and  Central  America. 

Latin  America,  Clark  University  Addresses,  1913.     Edited  by  George  H. 

Biakeslee. 
Pennington.     The  Argentine  Republic. 
Porter.     The  Ten  Republics. 
Reinsch.     "Parliamentary  Government  in  Chile,"  The  American  Political 

Science  Review,  Vol.  Ill,  p.  507. 
Ross.     South  of  Panama. 
Shepherd.     Latin  America. 


CHAPTER  LX 

Federation  and  Democracy 

A  CONFEDERATION  is  ail  association  of  otherwise  independent 
states  for  purposes  of  common  defense  and  the  regulation  of 
common  interests.  Each  of  the  States  thus  united  retains  its 
sovereignty,  and  the  officers  of  the  confederation  are  dependent 
upon  the  States  for  the  execution  of  the  policies  agreed  upon. 
This  form  of  association  prevailed  among  the  states  of  ancient 
Greece  and  more  recently  among  Swiss  Cantons  and  German 
States.  Such  was  the  form  of  union  among  the  American  States 
until  the  adoption  of  the  Constitution  of  the  United  States. 
A  federation,  or  a  state  having  a  federated  form  of  government, 
is  one  which  has  a  central  government  exercising  supreme 
authority  over  matters  of  common  interest,  but  which  reserves 
to  the  governments  within  the  local  areas  the  control  of  local 
affairs.  A  federation  involves  the  partition  of  the  powers  of 
the  state  between  central  and  local  governments.  The  United 
States  became  a  federation  under  the  Constitution  of  1789. 
Swiss  Cantons  were  united  under  a  federal  government  by  the 
Constitution  of  1848.  The  fact  that  the  words  confederation  and 
federation  are  often  used  as  synonyms  tends  to  promote  confu- 
sion between  the  two  plans  of  union.  Germans  give  accurate 
expression  to  the  distinction  in  the  terms  Staaknbitnd ,  meaning 
a  league  of  separate  states,  and  Bundesstaat ,  meaning  a  true 
federal  union  of  the  states  under  one  general  government. 
Since  democracy  and  the  federated  form  of  government  have  a 
common  origin,  there  is  evidence  of  a  necessary  connection. 
Democracy  on  a  large  scale  is  difficult  of  realization  apart  from 
federation,  and  that  form  once  attained  becomes  itself  a  teacher 
of  democracy. 

When  fugitives  from  the  oppressions  of  the  Old  World  formed 
colonies  in  North  America  the  experiment  began  which  finally 
resulted  in  a  federal  government.  The  settlements  could  not  be 
2Y  689 


690  COMPARATT\'E   FREE   GOVERNMENT 

governed  from  the  mother  country ;  they  governed  themselves 
in  town,  parish,  and  county,  and  managed  affairs  of  general  interest 
through  the  colonial  legislatures.  The  colonists  became  every- 
where devoted  to  the  privilege  of  self-government.  They  were 
ready  to  light  rather  than  submit  to  English  domination.  Even 
the  Cavaliers  of  Virginia  who  had  sided  with  the  Stuart  mon- 
archy in  England  would  not  peaceably  submit  to  Stuart  rule  in 
Virginia.  They  would  accept  the  ritual  of  the  English  Estab- 
lished Church,  but  they  would  not  tolerate  an  English  bishop. 
They  were  fully  determined  to  govern  themselves  both  in  church 
and  state ;  and  when  the  time  came  for  independence,  the  Vir- 
ginian Cavaliers  were  not  a  whit  behind  the  New  England  Puri- 
tans in  devotion  to  their  cause  or  in  the  efficiency  with  which 
they  supported  it.  Liberty  was  the  vital  principle  in  the  air  of 
the  New  World,  and  liberty  meant  to  all  the  colonists  the  per- 
manence of  their  control  over  their  own  local  institutions. 

Cooperation  between  the  colonies  in  matters  of  common 
interest  grew  up  early.  In  1643  four  New  England  colonies 
formed  a  league,  or  confederation,  which  lasted  for  forty  years. 
With  the  encouragement  of  the  British  government,  attempts 
were  made  to  draw  all  the  colonies  into  a  union  for  greater 
efficiency  in  warding  off  attacks  of  the  French  from  Canada. 
All  the  elements  were  at  hand  for  the  creation  of  a  common  gov- 
ernment of  the  federal  type  and  all  the  conditions  seemed  to 
favor  it.  Had  there  been  no  separation  from  England,  it  is  not 
likely  that  the  colonists  would  have  been  induced  to  yield  their 
control  over  local  affairs  and  hence  the  principle  of  federation 
would  have  been  injected  into  the  British  government.  By 
maintaining  the  right  to  conduct  their  own  local  affairs  in  their 
own  way,  while  conceding  to  the  British  government  the  exercise 
of  only  such  power  over  them  as  met  with  their  approv^al,  the 
colonists  were  ui)holding  the  federal  principle  in  government. 
Before  a  Declaration  of  Jnclt-pendencc  had  l)ecn  framed  ;  before 
the  meeting  of  the  Philadelphia  Convention  of  17.S7  had  been 
called,  the  fcfleral  form  for  state  organization  in  America  was  a 
foregone  conclusion.  In  no  other  way  could  the  demands  for 
.self-government  be  realized.  Had  England  yielded  to  the  wishes 
of  the  colonists,  federation  would  have  taken  place  under 
British  authority,  and  such  a  feflcration  would  naturally  have 
included  (Janada  as  well  as  the  thirteen  colonies.      Then  the 


FEDERATION  AND   DEMOCRACY  691 

course  of  history  would  have  been  different.  No  great  state 
would  have  stood  forth  as  originally  founded  upon  the  prin- 
ciple of  federation.  There  would  have  been  no  Declaration  of 
Independence ;  no  Washington's  Farewell  Address ;  no  Monroe 
Doctrine  serving  notice  upon  Europe  to  refrain  from  interference 
with  the  republics  of  the  New  World ;  no  Lincoln's  Gettysburg 
speech.  But  democracy  would  nevertheless  have  found  embodi- 
ment with  equal  certainty  in  states  securing  to  their  citizens 
control  of  local  affairs. 

The  principle  of  federation  fulfills  certain  permanent  and 
imperative  needs  of  universal  free  government.  First  there  is  the 
organized  neighborhood  which  secures  peace  and  harmony 
among  famihes  and  individuals  and  gives  expression  to  com- 
munity life.  Among  the  ancient  Greeks  the  organized  neighbor- 
hood comprised  the  entire  state.  In  the  United  States  and 
Canada  it  includes  town,  city,  and  county.  Among  adjacent 
communities  conflicting  interests  arise  and  there  is  need  of  a 
more  general  organization  to  maintain  just  relations  between 
counties  and  cities;  and  there  are  other  industrial  and  social 
needs  common  to  all  local  communities  which  the  separate 
counties  cannot  supply.  These  are  met  by  the  State  in  the 
United  States  and  by  the  Province  in  Canada.  Conflicting 
interests  also  arise  between  adjacent  States  and  Provinces,  and 
there  are  general  governmental  needs  not  met  by  the  state 
organizations.  Hence  the  government  of  the  United  States 
and  of  the  Dominion  of  Canada  to  supplement  those  of  State 
and  Province.  In  the  case  of  Canada  a  government  of  still 
higher  authority  is  represented  by  the  British  Crown.  These  are 
facts  illustrating  a  common  need.  The  greatest  of  the  Anglo- 
Saxon  contributions  to  the  free  government  of  the  world  is  found 
in  the  diversity  of  forms  presented  for  federated  governments. 

The  United  States,  Canada,  and  Australia  all  present  diflcrcnt 
types  of  federation.!  The  United  States,  a  highly  elaborated 
federated  state,  is  the  original  model.  The  Canadian  Constitu- 
tion was  framed  at  a  time  when  the  States  of  the  American  Union 
were  undergoing  reconstruction  after  a  disastrous  civil  war. 
This  is,  no  doubt,  one  cause  for  the  highly  centralized  character 
of  the  Dominion  government.     No  Canadian  Province  can  ever 

'  For  a  description  of  the  federated  self-governing  Dominions  of  England  and  of 
their  relation  to  the  Central  Government  see  Chap.  XLV. 


692  COMPARATIVE   FREE   GOVERNMENT 

claim  a  constitutional  right  to  dissolve  the  Union.  The  Province 
is  allowed  only  such  powers  as  are  assigned  to  it  by  the  Consti- 
tution, all  others  belong  to  the  central  government.  The 
central  government  exercises  a  veto  power  over  provincial  legis- 
lation, and  the  courts  of  the  Dominion  or  the  Privy  Council  in 
England  may  nullify  legislative  acts  of  the  Provinces.  In  many 
ways  the  Provinces  are  restricted  in  their  action,  yet  they  have 
been  given  b>'  the  constitution  enough  independent  power  to 
insure  a  vigorous  and  active  state  life.  They  control  local  gov- 
ernment and  formulate  their  own  constitutions.  The  same 
people  control  both  the  Provinces  and  the  Dominion  govern- 
ment, and,  in  general,  they  retain  in  the  separate  Provinces  all 
the  powers  they  want. 

The  Australian  Constitution  was  formulated  under  entirely 
different  conditions.  Jealousy  for  State  rights  long  prevented 
the  formation  of  the  Commonwealth.  In  the  organization  of 
the  union  the  people  of  AustraHa  reserved  to  their  separate 
States  all  powers  not  specifically  conferred  upon  the  government 
of  the  Commonwealth.  The  States,  in  appearance  at  least, 
retain  a  more  important  and  independent  position  than  do  the 
Canadian  Provinces.  Yet  in  Australia  the  central  government  is 
endowed  with  a  much  wider  range  of  powers  than  is  the  general 
government  of  the  United  States.  Of  the  three  governments 
compared  Canada  is  most  highly  centralized,  the  United  States 
least  centralized,  while  Australia  holds  an  intermediate  position. 

An  interesting  fourth  grade  in  the  order  of  centralization  is 
presented  by  tlie  recently  formed  Union  of  South  Africa.  Dutch 
and  English  had  long  been  at  enmity  and  a  war  of  conquest 
ended  in  1902.  There  was  a  mixed  population  in  each  of  the 
four  colonies.  Many  considerations  favored  a  strongly  cen- 
tralized government.  The  colonies,  therefore,  voluntarily 
surrendered  practically  all  of  their  independent  powers  and 
consented  to  be  governed  locally  by  executive  and  legislative 
councils  of  their  own  choosing  with  few  powers  assigned  to 
them  by  the  Constitution  and  such  additional  powers  as  might 
\)(i  afterwarfls  granted  them  by  the  government  of  the  Union. 
In  legal  form  the  South  African  Union  is  not  a  federated  state. 
It  is  rather  a  centralized  state  having  highly  developed  local 
autonomous  provinces.  In  practice  this  may  not  differ  greatly 
from  the  Canadian  type  of  federation. 


FEDERATION  AND   DEMOCRACY  693 

These  illustrations  exhibit  the  great  adaptability  of  federal 
forms  to  varying  conditions.  The  South  African  provinces  are 
almost  entirely  dependent  on  the  general  government  for  the 
powers  they  exercise.  They  are  subject  to  the  orders  of  the 
government  as  an  American  county  is  subject  to  the  state 
government.  The  Union  of  South  Africa,  however,  in  its  re- 
lation to  the  central  English  government  is  almost  independent. 
Only  in  a  very  limited  way  does  England  maintain  authority 
over  any  of  the  dominion  governments.  There  is,  however, 
enough  of  authority  mutually  recognized  to  suggest  the  federal 
type  of  government.  That  is,  with  England  as  a  central  gov- 
ernment and  South  Africa,  Australia,  Canada,  and  New  Zealand 
as  subordinate  states,  a  government  of  the  federal  type  is 
suggested,  but  in  this  case  nearly  all  the  real  powers  of  govern- 
ment are  in  the  hands  of  the  separate  states. 

The  federal  form  of  government  has  called  into  being  a  new 
order  of  sentimental  union,  a  new  variety  of  patriotism.  The 
framers  of  the  American  Constitution  of  1789  assumed  that  the 
States  would  continue  to  hold  the  chief  positions  of  honor,  the 
leading  place  in  the  affections  of  the  people.  National  patriot- 
ism was  yet  to  be  created.  National  patriotism  does  not  in 
itself  detract  from  local  and  state  pride  and  devotion.  As  one 
values  his  local  and  community  life,  so  ought  one  to  value  the 
State  which  is  guardian  and  promoter  of  that  life.  As  one 
appreciates  the  blessings  of  an  authoritative  state  or  provincial 
body  politic,  so  one  ought  to  prize  the  more  general  body  politic 
which  insures  harmony  and  security  among  the  States.  To 
the  citizen  trained  to  the  full  appreciation  of  the  federal  system 
there  is  one  all-inclusive  object  of  patriotic  devotion.  Canadians 
are  intensely  loyal  to  the  British  government  on  account  of  the 
rich  and  satisfying  community,  Provincial,  and  Dominion  Hfe 
which  such  a  relation  insures  to  them.  There  are  numerous  stim- 
uli to  the  one  sentiment  of  devotion.  The  citizen  of  the  parish 
is  made  conscious  of  a  vital  share  in  the  life  of  a  great  empire. 
In  the  United  States  true  federation  was  not  attained  until  the 
conflict  between  the  devotion  of  Americans  to  their  States  and 
to  the  general  government  had  ceased.  In  a  genuine  federation 
an  appreciation  of  any  one  part  includes  an  appreciation  of  all. 

The  new  patriotism  which  the  federal  system  promotes  is 
found  able  to  make  an  end  of  the  inveterate  hatred  and  rivalry 


694  COMPARATIVE   FREE   GOVERNMENT 

arising  from  difference  in  race,  language,  and  religion.  English 
and  French  had  been  traditional  enemies  for  centuries.  Be- 
tween the  two  peoples  there  was  actual  or  threatened  war 
when  English  statesmen  induced  the  Canadians  to  begin  the 
formation  of  a  federal  union  and  assume  the  powers  of  local 
self-government.  Serious  conflicts  were  thus  brought  to  an 
end;  French  Canadians  became  loyal  British  subjects;  Eng- 
lish Canadians  became  the  willing  followers  of  French  Canadian 
leaders.  Sir  Wilfred  Laurier,  a  French  CathoHc,  was  for  many 
years  Prime  Minister  of  the  Dominion,  and  when  a  movement 
arose  for  a  closer  compact  among  the  different  parts  of  the 
British  empire,  the  French  Canadian  statesman  was  accepted 
as  the  most  influential  personal  exponent  of  the  sentiment  of 
imperial  union.  Another  exemplification  of  the  same  principle 
is  found  in  the  relations  of  Dutch  and  English  in  South  Africa. 
A  vindictive  war  was  followed  immediately  by  friendly  cooper- 
ation between  Dutch  and  English  to  found  a  great  free  self- 
governing  union.  The  Boers  are  becoming  loyal  to  the  British 
government  because  for  the  first  time  in  their  history  they  feel 
secure  in  the  enjoyment  of  their  local  community  life  and  at 
the  same  time  are  made  conscious  of  a  share  in  extending  the 
principles  of  self-government  to  the  ends  of  the  earth. 

The  Anglo-Saxons  by  occupation  and  by  political  influence 
have  preempted  the  greater  part  of  the  New  World  and  of 
Australia  for  the  federated  form  of  free  government  and  have 
founded  in  South  Africa  a  free  Rci)ublic  destined  probably  to 
assume  the  same  form. 

Switzerland  has  become  a  federal  state  after  many  centuries 
of  continuous  confederation  between  Cantons.  The  commune 
is  a  primitive  institution  of  the  same  order  as  the  Saxon  town, 
or  township.  Communes  became  united  into  Cantons  and 
during  the  thirteenth  century  these  began  to  unite  for  mutual 
l)roleclion.  Until  the  adoption  of  the  Constitution  of  1848 
Switzerland  was  a  Confederation,  but  by  the  adoption  of  the 
Constitution  it  became  a  federal  state.  From  force  of  habit 
it  is  still  cillcd  a  Confederation.  Swiss  history  illustrates  the 
American  order  for  the  formation  of  union.  Devotion  to  local 
autonomy  was  determined  and  j)ersistent.  Even  the  Catholic 
Church  in  some  Swiss  communes  took  on  a  form  of  government 
similar  to  that  of  the  Puritan  churches  in  the  New  England 


FEDER.\TION  AND   DEMOCRACY  695 

to\vns ;  the  Communes  elected  their  own  priests.  Cantons 
were  formed  by  the  union  of  communes,  as  American  townships 
united  to  form  Counties.  In  Switzerland  the  Canton  was  the 
sovereign  state.  They  confederated,  but  they  did  not  surrender 
their  sovereignty  until  a  Swiss  democracy  had  been  developed 
which  could  be  relied  upon  to  control  the  central  government. 
The  federal  governments  thus  far  described  present  one  general 
line  of  development.  In  each  case  the  people,  having  control 
of  local  affairs  and  realizing  the  need  of  a  government  of  wider 
range  and  superior  authority,  call  into  existence  agencies  to 
meet  those  needs. 

In  the  German  Empire  a  different  order  is  observed ;  there 
the  government  emanates  from  the  rulers  instead  of  the  people. 
It  is  a  government  devised  by  kings  and  princes.  But  the 
popular  element  does  appear  in  the  German  Constitution  of 
187 1.  Bismarck,  having  failed  to  induce  the  German  princes 
to  accept  the  King  of  Prussia  as  their  Emperor,  appealed  for 
support  to  the  people  of  Germany.  He  gave  them  an  assembly 
of  their  own  choosing.  In  this  way  democracy  became  an 
essential  part  of  the  federation. 

A  genuine  federation  involves  the  union  of  equal  states ; 
equal  in  their  relations  to  one  another  and  subject  to  equal 
rights  in  their  relations  to  the  central  government.  The  Ger- 
man federation  does  not  conform  to  this  ideal.  The  constitu- 
tion, however,  furnishes  evidence  of  an  attempt  to  do  so.  The 
monarchs  who  formed  the  union  agreed  to  accept  one  of  their 
own  number  as  President  of  the  Empire,  but  refused  to  subject 
themselves  to  the  rule  of  an  hereditary  Emperor.  They  were 
wiUing  to  accept  the  King  of  Prussia  as  their  President  and 
were  content  to  associate  with  the  office  of  President  the  hon- 
orary title  of  Kaiser,  or  Emperor.  The  German  experience 
illustrates  the  great  difficulty  of  forming  an  authoritative  govern- 
ment over  a  group  of  absolute  rulers.  If  they  permit  another 
to  exercise  a  part  of  the  authority,  they  cease  to  be  absolute. 
The  Constitution  gave  to  the  separate  principalities  many  powers 
and  provided  for  the  management  of  imperial  affairs  by  delegates 
appointed  by  the  princes  and  subject  to  their  instruction. 
In  appearance  the  Constitution  did  provide  for  a  federation  of 
kings  and  princes  on  nearly  equal  terms.  Had  the  actual 
working   Constitution   conformed   to   the  fictions  of    equality 


696  COMPARATIVE   FREE   GOVERNMENT 

injected  into  the  frame  of  government,  the  union  would  have 
been  a  rope  of  sand ;  it  would  have  failed  as  had  previous  efforts 
to  secure  a  united  Germany.  The  success  of  the  Union  arises 
from  the  fact  that  a  single  State  had  already  conquered  and 
annexed  the  greater  part  of  the  German  territory.  It  was 
a  matter  of  detail  whether  the  remaining  States  would  join  by 
agreement  or  by  force.  The  form  of  federation  is  a  mere  inci- 
dent in  the  creation  of  an  Empire  governed  by  Prussia.  The 
actual  government  is  in  conflict  with  the  federal  principle  of 
equaUty  between  the  States.  Absolute  or  Constitutional 
monarchies  may  form  alliances  or  confederations,  but  the 
experience  of  the  Germans  seems  to  prove  that  they  may  not 
form  an  authoritative  central  government  of  the  federal  type. 
Either  there  will  ])c  no  government  or  the  weak  States  will  be 
subordinated  to  the  strong.  Should  the  people  of  Prussia 
gain  control  of  their  government  and  establish  a  parliamentary 
monarchy,  the  way  would  be  opened  for  a  genuine  federal  gov- 
ernment. The  people  of  Prussia  would  unite  with  the  people 
of  other  States  to  control  the  central  government.  Authority 
would  pass  to  the  Reichstag  in  which  all  the  States  arc  pro- 
portionately represented.  The  democracy  would  naturally  seek 
to  extend  to  the  small  and  weak  States  equal  rights  and  privileges. 
This  has  been  the  common  experience.  Rhode  Island  is  as 
secure  in  every  local  privilege  as  is  New  York  or  Texas. 

The  phenomenal  extension  of  the  federal  forms  of  organization 
during  the  j)ast  century  is  a  proi)hecy  of  greater  triumphs  for 
the  future.  Statesmen  and  philosophers  everywhere  are 
learning  to  think  in  terms  of  federation.  Some  of  the  thinking 
fmds  definite  expression  in  such  institutions  as  the  Hague  Con- 
ferences, the  Hague  Tribunals,  the  Quinquennial  meetings  of 
delegates  from  the  rei)ul)lics  of  the  New  World,  and  numerous 
other  similar  institutions.  The  actual  institutions  looking 
towards  a  better  understanding  or  a  more  perfect  union  among 
the  fiifferent  states  are  outnum])cre(l  by  the  various  plans  of 
union  pro[)osed  for  discussion.  It  is  im[)ossil)le  that  any  con- 
siderable j)roportion  of  the  j)lans  should  ever  be  realized ;  yet 
the  general  and  rapidly  increasing  interest  in  the  subject  gives 
reasonable  grounds  for  the  belief  that  the  tried  and  approved 
plans  of  federation  now  in  use  will  be  still  farther  extended  and 
that  new  and  j)erchance  belter  methods  will  be  discovered. 


FEDERATION  AND   DEMOCBL\CY  697 

The  plan  first  evolved  in  the  United  States  assumed  the  pre- 
existence  of  a  people  accustomed  to  take  care  of  themselves  in 
their  own  local  institutions ;  a  people  who  stubbornly  refused 
to  surrender  local  control  to  a  central  government.  This  con- 
dition is  found  among  comparatively  few  peoples  and  to  nearly 
all  of  these  the  plan  of  federation  has  already  been  extended. 
Switzerland  alone,  apart  from  the  British  colonies,  fulfills  the 
conditions.  To  farther  extend  the  Anglo-Saxon  plan  calls  for 
modifications.  Americans  are  training  Filipinos  for  self- 
government  by  creating  habits  of  control  over  local  institutions. 
Something  in  the  same  line  is  being  done  in  India  and  in  other 
British  possessions.  This  is  an  important  modification  of  the 
original  plan.  Even  with  this  modification  the  field  for  its 
extension  is  limited.  Rulers  who  are  not  themselves  accustomed 
to  administer  a  government  in  which  local  autonomy  prevails 
will  experience  peculiar  difficulty  by  beginning  with  the  local 
institutions.  The  French  experience  is  an  illustration  in  point. 
The  Revolutionary  statesmen  had  the  idea;  they  proposed  to 
evolve  a  free  state  out  of  local  communes  and  Cantons,  but 
the  plan  would  not  work.  More  than  a  hundred  years  have 
intervened  and  the  goal  is  apparently  as  remote  as  at  the  be- 
ginning. The  ideal  still  survives,  but  the  method  of  approach 
has  been  completely  reversed.  Instead  of  the  commune  the 
department  or  some  provincial  area  yet  to  be  formed  holds  the 
place  of  chief  interest.  The  central  government  will  unload 
some  of  its  burdens  upon  the  provinces  and  these  in  turn  will 
cultivate  the  local  democracy.  The  order  of  development  is 
from  the  higher  authority  to  the  lower,  rather  than  from  the 
lower  to  the  higher.  It  is  not  hkely  that  a  system  developed  in 
the  reverse  order  will  have  the  same  characteristics  as  the 
American  and  Swiss  federations.  It  may  have  no  characteristics 
which  answer  to  the  accepted  definition  of  a  federal  state; 
but  by  federation  or  by  some  other  agency  the  local  needs  will 
be  met. 

Important  as  is  the  principle  of  federation  in  respect  to  the 
domestic  relations  of  the  people  in  the  great  states,  it  is  even 
more  important  in  its  relations  to  the  needs  of  a  world  democracy. 
It  is  difficult  to  imagine  any  agency  for  giving  expression  to 
the  sense  of  justice  common  to  all  civilized  peoples  which  does 
not  involve  a  common  agreement  of  equal  states.      The  United 


698  COMPAR.\TIVE  FREE   GOVERNMENT 

States  of  Europe,  the  United  States  of  North  and  South 
America,  or  the  United  States  of  the  World  involve  no  new 
principles,  but  merely  an  extension  of  principles  now  in  full 
operation.  The  consciousness  of  common  European  needs  first 
found  expression  in  international  law,  and  the  fulfillment  of 
international  law  leads  logically  to  some  form  of  federation. 
The  consciousness  of  the  common  needs  of  the  republics  of  the 
New  World  gave  rise,  first,  to  the  Monroe  Doctrine,  to  be 
followed  by  forms  of  closer  and  more  effective  union. 

A  distinct  world  consciousness  with  a  lively  sense  of  com- 
mon needs  is  of  very  recent  origin,  and  its  natural  fulfillment 
is  "  The  federation  of  Man." 

REFERENCES 

See  Chap.  XLV. 

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I 


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Stanwood,  Edward.     A  History  of  the  Presidency  from  1788  to  1897. 

Boston,  1898. 


704  COMPARATI\'E   FREE   GOVERNMENT 

A  Histoty  of  the  Presidency  from  1897  to  1909.      Boston,  191 2. 

Stimson,  Frkderic  Jesup.     The  American  Constitution.     New  York,  1908. 
The  Law  of  the  Federal  and  State  Constitutions  of  the  United 

States.     Boston,  1908. 
Story,  Joseph.     Commentaries  on  the  Constitution  of  the  United  States. 
Two  vols.     Fifth  Edition,  Edited  by  M.  M.  Bigelow,  Boston,   1891. 
Thorpe,  Francis  Newton.     Federal  and  State  Constitutions.     Seven  vols. 

Washington,  1909. 
T1EDEM.A.N,  Christopher  Gustavus.     The  Unwritten  Constitution  of  the 

United  States.     New  York,  1890. 
TocQtTEViLLE,    Alexis    de.     Democracy  in  America.     Two  vols.     Paris, 

1835-1840.     Translation  by  Henry  Reeve.     New  York,  1898. 
Van  Dyne,  Frederick.    Citizenship  of  the  United  States.    Rochester,  1903. 
A  Treatise  on  the  Law  of  Naturalization  of  the  United  States. 

Rochester,  1907. 
Weyl,  Walter  E.     The  New  Democracy.     New  York,  1914. 
Wilcox,  Delos  F.     Government  by  all  the  People :    The  Initiative,  The 

Referendum  and  The  Recall  as  Instruments  of  Democracy.     New  York, 

1912. 
WiLLOUGHBY,  Westel  Woodbury.     The  American  Constitutional  System. 

(American  State  Series.)     New  York,  1904. 
The  Constitutional  Law  of  the  United  States.    Two  vols.    New 

York,   1910. 
Wilson,  Woodrow.     Congressional  Government  :  A  Study  in  American 

Politics.     Boston,  1904. 
Constitutional  Government  in  the  United  States.      New  York, 

1908. 
WooDBURN,  James  Albert.     The  American  Republic  and  its  Government. 

New  York,  1908. 
Political  Parties  and  Party  Problems  in  the  United   States. 

Second  Edition,  New  York,  1914. 
Young,  James  T.     The  New  American  Government  and  its  Work.     New 

York,  1915. 

State  and  Local 

Annals  of  the  .\mcrican  .Academy  of  Political  and  Social  Science:  July, 
1910,  Administration  of  Justice  in  the  United  States;  September, 
1Q12,  The  Initiative,  Referendum  and  Recall;  May,  1913.  County 
Government;    March,  1914.  Reform  in  the  Administration  of  Justice. 

Bkari),  CiiARi.KS  A.,  and  Schultz,  Birl  E.  Documents  on  the  State-wide 
Initiative,  Referendum  and  Recall.     New  York,  191 2. 

Braokokd,  Ernest  S.  Commission  Government  in  American  Cities. 
(Citizen's  Library.)     New  York,  191 1. 

Dealev,  James  Quayle.  Growth  of  .American  State  Constitutions. 
Boston,  1915. 

Our   State  Constitutions.      i'liila(iel|)]iia,   .\nnals  Sujiplement, 

March,  1907. 

Demin<;,  Horace  E.  The  Government  of  American  Cities.  New  York, 
1909. 


BOOK   LIST  705 

DoDD,  Walter  Fairleigh.  The  Revision  and  Amendment  of  State 
Constitutions.     (Johns  Hopkins  University  Studies.)     Baltimore,  1910. 

F.A.IRLIE,  John  A.  Local  Government  in  Counties,  Towns  and  Villages. 
(American  State  Series.)     New  York,  1906. 

GooDNOW,  Fr.\nk  J.  City  Government  in  the  United  States.  (American 
State  Series.)     New  York,  1904. 

Howe,  Frederic  C.  Wisconsin,  An  Experiment  in  Democracy.  New 
York,  191 2. 

Jones,  Chester  Lloyd.  Statute  Law  Making  in  the  United  States. 
Boston,  1912. 

Kansas  Legislative  Reference  Deparlment.  Bulletin  No.  i,  Legislative  Sys- 
tems.    Topeka,  1914. 

McCarthy,  Charles.     The  Wisconsin  Idea.     New  York,  1912. 

Manual  or  Legislative  Handbook  of  Each  State. 

Merriam,  C.  Edward.     Primary  Elections.     Chicago,  1908. 

MuNRO,  William  Bennett.  The  Government  of  American  Cities.  New 
York,  191 2. 

The  Initiative,  Referendum  and  Recall.      (National  Municipal 

League  Series.)     New  York,  1912. 

Oberholtzer,  Ellis  Paxson.  The  Referendum  in  America.  New  Edi- 
tion, New  York,  1911. 

Reinsch,  Paul  S.  American  Legislatures  and  Legislative  Methods.  New 
York,  1907. 

Readings  on  American  State  Government.     Boston,  191 1. 

Sheldon,  A.  E.,  and  Keegan,  M.  Legislative  Procedure  in  the  Forty- 
Eight  States.  (Nebraska  Legislative  Reference  Bureau,  Bulletin  No. 
3.)     Lincoln,  1914. 

Wilcox,  Delos  F.  Great  Cities  in  America.  (Citizen's  Library.)  New 
York,  1910. 

ENGLAND 

Government  and  Politics 

Acland,  a.  H.  D.,  and  Ransome,  C.  Handbook  of  the  Political  History 
of  England  to  1913.     New  Edition,  New  York,   1913. 

Adams,  G.  B.,  and  Stephens,  H.  M.  Select  Documents  of  English  Con- 
stitutional History.     New  York,  London,  1901. 

Anson,  Sir  William  R.  The  Law  and  Custom  of  the  Constitution. 
Fourth  Edition,  Revised,  Oxford,  1911. 

Atlay,  James  Beresford.  Victorian  Chancellors.  Two  vols.  Boston, 
1906-1908. 

Bagehot,  Walter.  The  English  Constitution.  Revised  Edition,  New 
York,  1904. 

Blau\'elt,  Mary  Taylor.  The  Development  of  Cabinet  Government  in 
England.     New  York,  1902. 

BouTMY,  Emile.  The  English  People:  .\  Study  of  Their  Political  Psy- 
chology. Translated  from  the  French  by  E.  English.  London, 
1904. 


7o6  COMPAR.\TIVE  FREE   GOVERNMENT 

Studies  in  Constitutional  Law.     Translated  from  the  Second 

French  Edition  by  E.  M.  Dicey.     London,  1891. 
Carter,  A.  T.     History  of  English  Legal  Institutions.     Fourth  Edition, 

London,  19 10. 
Churchill,  Winston  Spencer.     Life  of  Lord  Randolph  Churchill.    Two 

vols.     New  York,  1906. 
Constitutional  Year  Books.     London. 
Courtney,  Leonard  Henry.     The  Working  Constitution  of  the  United 

Kingdom.     New  York,  1910. 
Dicey,  Albert  Venn.     Introduction  to  the  Study  of  the  Law  of  the  Con- 
stitution.    Eighth  Edition,  New  York,  1915. 

The  Privy  Council.     Arnold  Prize  Essay,  i860.      London,  1887. 

Dickinson,  G.  Lowes.     Development  of  Parliament  During  the  Nineteenth 

Century.     London,  1895. 
Freeman,  Edward  A.     The  Growth  of  the  English  Constitution.     Fourth 

Edition,  London,  1884. 
History  of  the  Norman  Conquest  of  England.      Si.x  vols.     New 

York,  1873. 
Gardiner,  Samuel  R.     History  of  England  1 603-1 642.     Ten  vols.    New 

York,  1883-84. 
History  of  the  Commonwealth  and  Protectorate.     Four  vols. 

London,  1903. 
Gneist,  Rudolph.     The  English  Parliament  in  its  Transformations  through 

a  Thousand  Years.     Translated  by  R.  J.  Shee.     Boston,  1886. 
History  of  the  English  Constitution.      Translated  by    P.   A. 

Ashworth.     Two  vols.     New  Edition,  New  York,  1910. 
Green,  John  Richard.     History  of  the  English  People.     Four  vols.     New 

Edition,  New  York,  1904. 

Short  Histor>'  of  the  English  People.     New  York,  1902. 

Harris,  W.     History  of  the  Radical  Party  in  Parliament.     1885. 
Hearn,  William  Edward.     The  Government  of  England.     Second  Edi- 
tion, London,  New  York,  1886. 
Hunt,  William,  and  Poole,  L.  R.,  Editors.     Political  History  of  Eng- 
land.    1 2  vols.     London.     Each  volume  a  dififcrent  date. 
Ilbert,  Sir  Courtenay.    Legislative  Methods  and  Forms.     Oxford,  1901. 

The  Mechanics  of  Law  Making.     New  York,  1914. 

Parliament ;    Its  History,  Constitution  and  Practice.     (Home 

University  Library.)     New  York,  1911. 
Jenks,  Edward.      Parliamentary  England.      The  Evolution  of  the  Cal)inct 

System.     (Story  of  the  Nations.)     New  York,  1903. 
Kehukl,  TntJMAS  Edward.     History  of  Toryism,   1886. 
Kr.MHi.K,  John  MirfiHKLL.     Saxons  in  I'",nglanfl.     Two  vols.    New  York. 
King,  Joseph,  and  Rafpi.ty,  F.  W.     Our  Electoral  System  :   The  Demand 

for  Reform.     London,  191 2. 
Lee,  Sir  Sidney.     Queen  Victoria,  A  Biograi)hy.     Second  Fdition,  London, 

1903. 
Liberal  Year  Books.      London. 

Low,  Sidney.     The  Governance  of   I^iigland.     New   Edition,  New   York, 
1914. 


BOOK   LIST  707 

Lowell,  A.  Lawrence.     The  Government  of  England.     Two  vols.     New 

Edition,  New  York,  191 2. 
MacDonagh,  Michael.     The  Book  of  Parliament.     New  York,  1897. 
McIlwain,  Charles  Howard.     The  High  Court  of  Parliament  and  its 

Supremacy.     New  Haven,  1910. 
Macy,  Jesse.     The  English  Constitution.     New  Edition,  New  York,  1904. 
Marriott,    J.    A.    R.     English    Political    Institutions.     Second    Edition, 

Oxford,  19 1 3. 
May,  Thomas  Erskine.     Constitutional  History  of  England.     Two  vols. 

London,   1861-1863.     Three  vols.,  Vol.  Ill  by  Francis  Holland.     New 

York,  191 2. 
Treatise  on  the  Law,  Privileges,  Proceedings,  and   Usage   of 

Parliament.     Three  vols.     New  Edition,  London,  191 2. 
Medley,  Dudley  Julius.     English  Constitutional  History.     Oxford,  1894. 
MoRAN,  Thomas  Franxts.     Theory  and  Practice  of  the  English  Govern- 
ment.    New  Edition,  New  York,  1908. 
MoRLEY,    John.     Life   of   William    Ewart    Gladstone.     Two    vols.     New 

Edition,  New  York,  191 1. 
OsTROGORSKi,  M.     Democracy  and  the  Organization  of  Political  Parties. 

Two  vols..  Vol.  I  devoted  to  parties  in  England,  and  Vol.  II  to  parties 

in  the  United  States.     New  York,  1902. 
Pike,  Luke  Owen.     Constitutional  History  of  the  House  of  Lords.     New 

York,  1894. 
Pollock,  Sir  Frederick,  and  Maitland,  Frederic  William.     History  of 

English  Law  before  the  Time  of  Edward  I.     Two  vols.     Second  Edi- 
tion, Boston,  1899. 
Poole,  Reginald  L.     The  Exchequer  in  the  Twelfth  Century.     Oxford, 

1912. 
PoRRiTT,  Edward,  and  Porritt,  Mrs.  ANN^E  G.     The  Unreformed  House 

of  Commons.     Two  vols.     New  York,  1903. 
Powell,  Ellis  Thomas.     The  Essentials  of  Self-Government.     (England 

and  Wales.)     New  York,  London,  1909. 
Redlich,  Josef.     The  Procedure  of  the  House  of  Commons.     Translated 

by  A.  E.  Steinthal.     Three  vols.     New  York,  1910. 
Rosebery,  ARcraBALD.     Life  of  Lord  Randolph  Churchill.     New  York, 

1906. 
Smith,  G.  Barnett.     History  of  the  English  Parliament.     1892. 
Stubbs,  William.     The  Constitutional  History  of  England.     Three  vols. 

Second  Edition,  O.xford,  1875. 
Taswell-Longmead,    Thomas    Pitt.     English     Constitutional     History. 

Seventh  Edition,  Revised,  New  York,  191 2. 
Temple,   Rt.   Hon.   Sir  Richard.     The  House  of   Commons.     London, 

1899. 

Life  in  Parliament.     London,  1893. 

Todd,  Alpheus.     On  Parliamentary  Government  in  England.     Two  vols. 

Second  Edition,  London,  1889. 

Practice  and   Privileges  of  the  Two  Houses  of    Parliament. 

Trevelyan,  G.  M.     England  in  the  Age  of  Wycliffe.     New  Edition,  New 

York,  London,  1909. 


7o8  COMPARATIVE   FREE   GOVERNMENT 

England  under  the  Stuarts.      New  York,  1905. 

Wakemax,  Henry  O.     History  of  the  Church  of  England.     1908. 

Walpole,  Sir  Spenx'ER.  The  Electorate  and  the  Legislature.  (English 
Citizen  Series.)     London,  1892. 

History  of  England  from  the  Conclusion  of  the  Great  War  in 

1815.     Six  vols.     London,  191 1. 

Watson,  R.  Spence.  The  National  Liberal  Federation  from  its  Commence- 
ment to  the  General  Election  of  1906.     London,  1907. 

White,  William.  The  Inner  Life  of  the  House  of  Commons.  Edited  by 
Justin  McCarthy.     Two  vols.     London,  1904. 

Colonial  Government  and  Politics 

An  Analysis  of  the  System  of  Government  Throughout  the  British  Empire. 

London,  191 2. 
Bourinot,  Sir  John  George.     Manual  of  the  Constitutional  History  of 

Canada.     Montreal,  1888. 
Br.'^dley,  A.  G.     Canada.     (Home  University  Library.)     New  York,  191 2. 
Bradshaw,  F.     Self-Government  in  Canada  and  How  It  Was  Achieved. 

London, 1903. 
Clement,  W.   H.   P.     The  Law  of   the  Canadian  Constitution.     Second 

Edition,  Toronto,  1904. 
Denison,  George  T.     The  Struggle  for  Imperial  Unity.     New  York,  1909. 
Dilke,  Sir  Charles  Wentworth.     Problems  of  Greater  Britain.     Fourth 

Edition,  London,  1890. 
Douglas,  Sir  Arthur.     Dominion  of  New  Zealand.     Boston,  1909. 
Egerton,   Hugh   I-^dward.     Federations  and   Unions  within   the   British 

Empire.     Oxford,  19 11. 
Egerton,  Hugh   Edward,  and   Grant,  W.   L.     Canadian   Constitutional 

Development.     London,  1908. 
Jebb,   Richard.     Studies  in   Colonial   Nationalism.     New  York,   London, 

1905- 
Ki.iTM,  Arthur  Berriedale.     Responsible  Government  in  the  Dominions. 

Three  vols.     O.xford,  191 2. 
Lekrov,  a.  H.  F.     Canada's  Federal  System.     Toronto,  19 13. 
Li;  Rossignol,  James  ICdward,  and  Stewart,  William  Downie.     State 

Socialism  in  New  Zealand.     (f>il)rary  of  Economics  and  Politics.)     New 

York,  1910. 
Lloyd,   Henry   Demarest.     Newest   England.     Notes  of  a   Democratic 

Traveller  in  New  Zealand,  with  some  Australian  Comparisons.     Re- 
vised Edition,  New  York,  1904. 
Lucas,  Sir  Charles  Prestwood.     Historical  Geography  of  the  British 

Colonics.     Si.x  vols.     New  Edition,  O.xford,   i()i4. 

— History  of  Canada.     O.xford,   1909. 

LusK,  Hugh  Hart.     Social  Welfare  in  New  Zealand.     New  York,   1913. 
MooRK,    William    Harrison.     The    New    .Australian    Commonwealth. 

Philadelphia,  1903. 
MUNROE,  J.  E.  C.     The  Constitution  of  Canada.     New  York,  iqoi. 
Paksons,  Frank.     The  Storv  of  New  Zealand.     Philadelphia,   11)04. 


BOOK   LIST  709 

Payne,  E.  J.  Colonies  and  Colonial  Federation.  (English  Citizen  Series.) 
London,  1904. 

ScHOLEFiELD,  GuY  H.  New  Zealand  in  Evolution ;  Industrial,  Economic, 
and  Political.     New  York,  London,  1909. 

Siegfried,  Andre.  Democracy  in  New  Zealand.  Translated  by  E.  V. 
Burns.     New  York,  London,  1914. 

Todd,  Alpheus.  Parliamentary  Government  in  the  British  Colonies.  New 
York,  1909. 

Turner,  Henry  Gyles.  The  First  Decade  of  the  Australian  Common- 
wealth.    New  York,  Melbourne,  191 1. 

Wise,  B.  R.     The  Commonwealth  of  Australia.     Boston,  1910. 

FRANCE 

Block,  M.     L'Administration  de  la  Ville  de  Paris  et  du  Department  de  la 

Seine.     Paris,  1898. 
BoDLEY,  John  E.  C.      France.     New  Edition,  New  York,  1900. 
Brissaud,  Jean.     Historj'  of  French  Public  Law.     Translated  by  J.  W. 

Garner.     (Continental  Legal  History  Series.)     Boston,  1915. 
Browne,   Arthur   S.     French  Law  and   Customs  for   the  Anglo-Saxon. 

Third  Edition,  London,  1914. 
DuGUiT,  Leon.     Les  Transformations  du  Droit  Public.     Paris,  1913. 
Garner,    James    Wilford.     The    French    Cabinet.     American    Political 

Science  Review.     Vol.  8,  p.  353.     Aug.,  1914. 
Guerard,  Albert  Leon.     French  Civilization  in  the  Nineteenth  Century. 

London, 1914. 
GuYOT,  Yves.     The  Relations  between  the  French  Senate  and  Chamber  of 

Deputies.     Contemporary  Review,  Vol.  97,  p.  142.     Feb.,  1910. 
Hanotaux,     Gabriel.     Contemporary     France.     Translated     by     John 

Charles  Tarver.     Four  vols.     New  York,  ^903-1909. 
Jacques,  Leon.     Les  Partis  PoHtiques  sous  la  III®  Republique.     Paris, 

1913- 
MoRGAUD,  Leon.     La  Loi  Municipale.    Two  vols.    Seventh  Edition,  Paris, 

1907. 
Pierre,  M.  Eugene.     Organization  des  Pouvoirs  Publics.     (Constitutional 

and  organic  laws  of  the  French  Republic.)     Paris,  1902. 
PoiNCARE,  Raymond.     How  France  is  Governed.     Translated  by  Bernard 

Miall.     New  York,  1914. 
PoNDRA,  and  Pierre.     Traits  Pratique  de  Droit  Parliamentaire.     Eight 

vols.     Versailles,  1878-1880. 

GERMANY 

Binding,  Karl.      Die  Rechtliche  Stellung  des  Kaisers  im  Heutigen  Deut- 

schen  Reiche.     1898. 
Bismarck,  Otto  von.      The  Man  and  the  Statesman.     Translated  under 

the  supervision  of  A.  J.  Butler.     Two  vols.     New  York,  1899. 
Bryce,   James.     The   Holy   Roman   Empire.     New   Edition,   New  York, 

1904. 


7IO  COMPARATIVE   FREE   GOVERXIMENT 

VON   BuLOW,   Bernhard.     Imperial   Germany.     Translated  by  Marie  A. 

Lewenz.     New  York,  1914. 
Combes  de  Lestrade,  Gaetan.     Les  Monarchies  de  I'Empire  Allemand, 

Paris,  1904. 
Dawson,  William  Harbutt.    Municipal  Life  and  Government  in  Germany. 

New  York,  19 14. 
He.adlam,  J.AMES  W.     Bismarck  and  the  Foundation  of  the  German  Empire. 

New  York,  1899. 
Howard,  Burt  Estes.     The  German  Empire.     New  York,  1906. 
James,  Herman  Gerlach.     Principles  of  Prussian  Administration.     New 

York,  1913. 
Laband,  Paul.     Das  Staatsrecht  des  Deutschen  Reiches.     Fifth  Edition, 

Tubingen,  1913.     French  Edition,  four  vols.,  Paris,  1900-1904. 
Mayer,  Otto.     Deutsches  Verwaltungsrecht.     Two  vols.    1914. 
Meyer,    George.     Das    Parlamentarische    Wahlrecht.     Edited    by    von 

Jellinck.     Berlin,  1901. 
Lehrbuch  des  Deutschen  Verwaltungsrechtes.      Fourth  Edi- 
tion, Leipzig,  1914. 
Schierbrand,  Wolf  von.     Germany,  The  Welding  of  a  World  Power. 

New  York,  1904. 
Seydel,  Max  von.     Commentar  zum  Verfassungsurkunde  fiir  das  Deutsche 

Reich.     Second  Edition,  Freiburg,  1897. 
Stillich,   Oscar.     Die   Politische   Parteien   in    Deutschland.     Two   vols. 

Leipzig,  1908-1911. 
Tower,    Charles.     Germany  of   To-day.     (Home    University  Library.) 

New  York,  1913. 
ZoRN,    Phillipp.     Das   Staatsrecht   des   Deutschen   Reiches.     Two   vols. 

Second  Edition,  Berlin,  1895-1897. 


SWITZERLAND 

Adams,  F.  O.,  and  Cunningham,  C.  D.  The  Swiss  Confederation.  London, 
1894. 

Dandliker,  Karl.  A  Short  History  of  Switzerland.  Translated  by  E. 
Salisbury.     New  York,  London,  1899. 

Deploige,  Simon.     The  Referendum  in  Switzerland.     New  York. 

Llontj,  Henry  Demarkst.  A  Sovereign  People:  .\  Study  of  Swiss  Democ- 
racy.    New  York,  1907. 

McCracken,  W.  D.  The  Rise  of  the  Swiss  Republic.  Second  Edition,  New 
York,  1901. 

Romance;   Switzerland.     (Jeneva,  Basle,  1895. 

Teutonic  Switzerland.     Cieneva,  Basle,  1895. 

Moses,  Bernard.  The  Federal  Government  of  Switzerland.  Oakland, 
1889. 

RiniMAN,  Trving  B.  Ap|)cnzell;  Pure  Democracy  and  Pastoral  Life  in 
Inncr-Khoden.     i^ondon,  1805. 

Vincent,  John  Martin,     (iovernment  in  Switzerland.     New  York,  1900. 

Winchester,  Boyd.     The  Swiss  Republic.     Philadeli)hia,  1891. 


BOOK  LIST  711 

SOUTH  AMERICA 

Akers,  Charles  Edmond.     History  of  South  America,  1854-1904.     New 

Edition,  New  York,  191 2. 
Bingham,  Hiram.     Across  South  America.     Boston,  191 1. 
Bryce,   James.     South   America;     Observations   and    Impressions.     New 

Edition,  New  York,  1914. 
Buckman,  Williamson.     Under  the  Southern   Cross  in  South  America. 

New  York,  1914. 
Bulletin  of  the  Pan  American  Union.     Washington,  D.C. 
Carpenter,  Frank  G.     South  America.     Akron,  Ohio,  1900. 
Clemenceau,  Georges.     South  America  To-day.     New  York,  191 1. 
Currier,  Charles  W.     Lands  of  the  Southern  Cross.     Washington,  D.C, 

1911. 
Dalton,  Leonard    V.     Venezuela.     (South    American  Series.)     London, 

1912. 
Dawson,   Thomas    C.     South   American   Republics.     Two   vols.     (Story 

of  the  Nations.)     New  York,  1903. 
Denis,  Pierre.     Brazil.     Translated  by  Bernard  Miall.      (South  American 

Series.)     London,  19 11. 
DoM\7LLE-FiFE,    Charles   W.     Great   States   of   South   America.      New 

York,  1910. 

The  United  States  of  Brazil.     New  York,  1911. 

Elliot,  G.  F.  Scott.     Chile.     London,  19  n. 

Enock,   C.   Reginald.     The   Republics  of   Central  and   South    America. 

(South  American  Series.)     New  York,  London,  1913. 
Eraser,  John  Foster.     The  Amazing  Argentine.     New  York,  1914. 
Garcia-Calderon,   F.     Latin   America.    Translated    by    Bernard   Miall. 

(South  American  Series.)     New  York,  London,  1913. 
Guinness,  Geraldine.     Peru  :  Its  Story,  People  and  Religion.     New  York, 

London,  1909. 
Hale,  Albert.     The  South  Americans.     Indianapolis,  1907. 
Handbooks  of  the  various  countries  issued  by  the  Pan-American   Union. 

Washington,  D.C. 
Hirst,  William  A.     Argentina.     (South  American  Series.)   London,  1910. 
KOEBEL,  W.  H.     Modern  Argentina.     Boston,  191 2. 
South  America.     (Making  of  the  Nations  Series.)      New  York, 

London,  1913. 
Latin    America.     George  H.   Blakeslee,    Editor.     (Clark    Uni\-crsily    Ad- 
dresses, 1913.)     New  York,  1914. 
Maitlan-d,  Francis  J.  G.     Chile:    Its  Land  and  People.     London,  1914. 
Mansfield,  Robert  E.     Progressive  Chile.     New  York,  1013. 
Martin,  Percy  F.     Peru  of  the  Twentieth  Century.     London,  191 1. 
Martinez,  Alberto  B.     The  Argentine  Republic.     Buenos  Aires,  1910. 
Martinez,  .\lberto  B.,  and  Lewandowski,  Maurice.     The  Argentine 

in  the  Twentieth  Century.     Translated  from  the  French  of  the  Third 

Revised  Edition  by  Bernard  Miall.     New  York,  191 5. 
Paxson,  Frederick   L.     The  Independence  of  the  South  American  Re- 
publics.    Philadelphia,  1903. 


712  COMPARATIVE   FREE   GOVERNMENT 

Pennington,  A.   Stuart.    The  Argentine  Republic.     New  York,   iqto. 

Porter,  Robert  P.     The  Ten  Republics.     Chicago,  1913. 

Reyes,  Rafael.     The  Two  Americas.     Translated  From  the  Spanish  by 

Leopold  Grahame.     New  York,  1914. 
RoscHER,  Wilhelm.     The  Spanish  Colonial  System.     Edited  by  E.   G. 

Bourne,  New  York,  1904. 
Ross,  Edward  Alsworth.     South  of  Panama.     New  York,  1915. 
Shepherd,    William    R.     Latin    America.     (Home   University    Library.) 

New  York,  1914. 
South  American  Year  Book. 

Speer,  Robert  E.     South  American  Problems.     New  York,  191 2. 
Winter,  Nevin  O.      Argentina  and  Her  People  of  To-day.     Boston,  1911. 
Brazil  and  Her  People  of  To-day.     Boston,  1910. 


COMPARATIVE  WORKS 

Alston,  Leonard.     Modern  Constitutions  in  Outline.     London,  1905. 

Amos,  Sheldon.     Science  of  Politics.     New  York. 

Ashley,  Percy.     Local  and  Central  Government.    A  Comparative  Study 

of  England,  France,  Prussia  and  the  United  States.     New  York,  1906. 
Bluntschli,  J.  K.     The  Theory  of  the  State.     Translated  from  the  Ger- 
man.    Third  Edition,  O.xford,  1901. 
Borgeaud,   Charles.      Adoption   and  Amendment    of    Constitutions  in 

Europe  and  America.     Translated  by  Charles  D.  Hazen.     New  York, 

1909. 
Bryce,  James.     Studies  in  History  and  Jurisprudence.     Two  vols.     New 

York,  1 90 1. 
Burgess,  John  W.     Political  Science  and  Comparative  Constitutional  Law. 

Two  vols.     Boston,  1891. 
Cambridge  Modern  History.     Edited  by  A.  W.  Ward,  G.  W.  Prothero  and 

S.  Leathes.     Fourteen  vols.     New  York,  1902-1912. 
Crane,  William  W.,  and   Moses,  Bernard.     Politics:    .Vn  Introduction 

to  the  Study  of  Comparative  Constitutional  Law.     New   York,  1898. 
Dickinson,  Reginald.     Summary  of  the  Constitutions  and  Procedure  of 

Foreign  Parliaments.     Second  Ixlition,  1890. 
DoDD,  Walter  Fairleujh.     Modern  Constitutions.     Two  vols.     Chicago, 

1909. 
iJiPRiEZ,   Leon.     Les  Ministres  dans  les   Principaux    Pays   d'Kuropc  et 

d'Amcrique.     Two  vols.     Second  Edition,  1892-1893. 
Fisher,  H.  A.  L.     The  Republican  Tradition  in  Europe.     New  York,  l>on- 

don,  10 1 1. 
Flaudin,     Etien.     Institutions     I'oliticiue    dc    ri'.uropc    (^ontemporaire. 

Four  vols.     Paris,  1900-1900. 
Garner,  James  Wilford.     Inlrodiu  tion  to  Politic  ;il  Science.     New  York, 

1910. 
Gettell,  Raymond  CJakfiei.d.     Intrcxku  tion   to   I'olitical   Science.     Bos- 
ton, 1910. 
GooUNOW,    Frank    J.     Comi)aralivc   Aiiministrative   Law;    An   .Analysis 


BOOK  LIST  713 

of  the  Administrative  System,  National  and  Local,  of  the  United  States, 

England,  France  and  Germany.     New  York,  1893. 
Hammond,  B.  E.     Outlines  of  Comparative  Politics.     1903. 
Holt,  Lucius  Hudson.     An  Introduction  to  the  Study  of  Government. 

New  York,  1915. 
Howe,  Frederic  C.     European  Cities  at  Work.     New  York,  1913. 
Leacock,  Stephen.     Elements  of  Political  Science.     Boston,  1906. 
Le  Bon,  Gustave.     The  Psychology  of  Peoples.     New  York,  191 2. 
Lefevre-Pontalis,  Antonin.     Les  Elections  en  Europe  a  la  Fin  du  XIX® 

Siecle.     1902. 
Lowell,  A.  Lawrence.     Governments  and  Parties  in  Continental  Europe. 

Two  vols.     Boston,  1896. 
Marriott,  J.  A.  R.     Second  Chambers.     New  York,  1910. 
IMuNRO,  William  Bennett.     The  Government  of  European  Cities.     New 

York,  1909. 
Ogg,    Frederic    Austin.     The    Governments    of    Europe.     New    York, 
1913- 

Social    Progress  in  Contemporary  Europe.      New  York,  191 2. 

OsBORN,  J.  L.     Second  Chambers  at  Home  and  Abroad.     1910. 

PoLEY,  Arthur  Pierre.     Federal  Systems  of  the  United  States  and  the 

British  Empire.     Boston,  1913. 
Report  of  Royal    Commissioners  to  Inquire    into   Electoral  Systems.      Blue 

Book,  London,  1910. 
Sears,  Edmund  Hamilton.     An  Outline  of  Political  Growth  in  the  Nine- 
teenth Century.     New  York,  London,  1900. 
Seignobos,  Charles.     A  Political  History  of  Contemporary  Europe  since 

1814.     Two  vols.     London,  1901. 
Shaw,    Albert.     Municipal    Government   in    Continental    Europe.     New 

York,  1901. 
Sidgwick,  Henry.     Development  of  European  Polity.     New  York,  1903. 
Statesman's  Year  Book.     London. 
Wenzel,    John.     Comparative  View  of    the    Executive    and    Legislative 

Departments  of  the  Governments  of  the  United  States,  France,  Eng- 
land and  Germany.     Boston,  1891. 
Wilson,  Woodrow.     The  State.     Revised  Edition,  Boston,  1911. 


MISCELLANEOUS 

Abbott,  Lyman.     The  Rights  of  Man.     A  Study  in  Twentieth  Century 

Problems.     Boston,  1902. 

The  Spirit  of  Democracy.     Boston,  iqio. 

Aristotle's   Politics.     Translated    by   Benjamin   Jowett.     Two    vols.     0.x- 

ford,  1885. 
Austin,  John.     Lectures  on  Jurisprudence,  The  Philosophy  of  Positive 

Law.     Abridged  by  Robert  Campbell.     New  York,  1875. 
BoNDY,     William.     Separation     of     Governmental     Powers.     (Columbia 

University  Studies  in  History,  Economics,  and  Public  Law,  Vol.  5.) 

New  York,  1895. 


714  COMPAI'LVTIVE   FREE   GOVERNMENT 

Bradford,  Gam-vuel.  The  Lesson  of  Popular  Government.  New  York, 
London,  1899. 

Butler,  Nicholas  Murray.  True  and  False  Democracy.  New  York, 
London,  1907. 

Dole,  Charles  Fletcher.     The  Spirit  of  Democracy.     New  York,  1906. 

Dunning,  William  Archibald.  A  History  of  Political  Theories,  Ancient 
and  Mediaeval.     New  York,  London,  1902. 

A  History  of  Political  Theories  from  Luther  to  Montesquieu. 

New  York,  London,  1905. 

Ely,  Richard  T.  Property  and  Contract  in  their  Relations  to  the  Dis- 
tribution of  Wealth,     New  York,  1914. 

GiDDiNGS,  Franklin  Henry.  Democracy  and  Empire;  With  Studies  of 
Their  Psychological,  Economic,  and  Moral  Foundations.  New  York, 
1900. 

GoDKiN,  Edwin  Lawrence.  Unforeseen  Tendencies  of  Democracy. 
Boston,  London,  1898. 

GuY'OT,  Yves.     La  Democratic  Individualiste.     Paris,  1907. 

Hadley,  Arthur  Twining.  The  Relations  between  Freedom  and  Re- 
sponsibility in  the  Evolution  of  Democratic  Government.     New  York, 

1903- 
Hall,  William  Edward.     A  Treatise  on  International  Law.     Edition  Six, 

edited  by  J.  B.  Atlay.     Oxford,  1910. 
Hobhouse,  Leonard  T.     Democracy  and  Reaction.     New  York,  1905. 

Liberalism.      (Home  University  Library.)     New  York,   1911. 

Social  Evolution  and  Political  Theory.     (Columbia  University 

Lectures,  1910-1911.)     New  York,  1911. 
Hyslop,  James  H.     Democracy;    A  Study  of  Government.     New  York, 

1899. 
Jellinek,  Georg.     The  Declaration  of  the  Rights  of  Man  and  of  Citizens; 

A   Contribution   to   Modern   Constitutional   History.     Translated   by 

Max  Farrand.     New  York,  1901. 

Recht  des  Modcrnen  Staates. 

Jenks,  Jeremiah  W.     Governmental  .Xction  for  Social  Welfare.     (.Ameri- 
can Social  Progress  Series.)     New  York,  1910. 
Kelly,  10d.\iund.      Government;  or,  lluinan  l-Aolution.      'I'wo  vols.     New 

York,  1900. 
Leckv,   W.    E.   H.     Democracy  and    l.il)crty.      Two  vols.     New   Edition, 

New   York,  1899. 
Lerov,    Maxime.     [.a   Loi;     Essai   sur   l:i     Tlieoric  <li'   I'Aulorite  dans  la 

DC-mocratie.     Paris,  1908. 
.McKechnie,   Wri.i.TA.M   SnAki'.     'I'lie  State  and  tin-  Individual.     Glasgow, 

1896. 
Maine,  Sir  Henry  Sumni.k.     Po|)iilar  (iovcrnmenl;    I'our  Essays.     New 

York,  1886. 
.Mill,    Johm    Stuart.     Considrralions    on     Kiprescntative    (iovernment. 

New  York,  187s. 

On  Lilurly.     New  York,  1882. 

Oi'PKNHEiM,   L.     Intcrnulional  Law,  A  Treatise.     Two  vols.     New  York, 

•905- 


BOOK  LIST  715 

Orth,  Samuel  P.     Socialism  and  Democracy  in  Europe.     New  York,  1913. 

Ritchie,  David  G.  Principles  of  State  Interference.  Four  Essays  on  the 
Political  Philosophy  of  Spencer,  Mill,  and  Green.     London,  1891. 

Studies  in  Political  and  Social  Ethics.     New  York,  1902. 

RuBiNow,  Isaac  Max.     Social  Insurance.     New  York,  1913. 

SoHM,  Rudolph.  Institutes  of  Roman  Law.  Translated  by  James  Cran- 
ford  Ledlie.     Third  Edition,  Oxford,  1901. 

Spencer,  Herbert.  Social  Statics  and  Man  versus  the  State.  New  York, 
1901. 

Stickney,  Albert.     Organized  Democracy.     Boston,  1906. 

Stimson,  Frederic  Jesup.  Popular  Law-Making.  A  Study  of  the  Ori- 
gin, History  and  Present  Tendencies  of  Law-Making  by  Statute.  New 
York,  1911. 


<f 


CASES    IN   AMERICAN    CONSTITU 
TIONAL   LAW 


CASES    IN    AMERICAN    CONSTITU- 
TIONAL   LAW 


Supremacy  of  Federal  Authority 


Ableman  v.  Booth 

21  Howard  506 

1859 

Calder  v.  Bull 

3  Dallas  386 

1798 

Chisholm  v.  Georgia 

2  Dallas  419 

1793 

Cohens  v.  Virginia 

6  Wheaton  264 

1821 

Collector  v.  Day 

II  Wallace  113 

1871 

Debs,  in  re 

158  U.  S.  564 

189s 

Ex  parte  Siebold 

100  U.  S.  371 

1880 

Knox  V.  Lee 

12  Wallace  457 

1871 

Lane  County  v.  Oregon 

7  Wallace  71 

1869 

McCulloch  V.  Maryland 

4  Wheaton  316 

1819 

Martin  v.  Hunter's  Lessee 

I  Wheaton  304 

1816 

Neagle,  in  re 

135  U.  S.  I 

1890 

Osborn  v.  Bck^  0/  /Ae  United  States 

9  Wheaton  738 

1824 

South  Carolina  v.  United  States 

199  U.  S.  437 

1905 

Tennessee  v.  Z)ai>/5 

100  U.  S.  257 

1880 

Texaj  V.  White 

7  W^allace  700 

1869 

United  States  v.  Peters 

5  Cranch  115 

1809 

United  Slates  v.  Tarble  (Tarble's  Case) 

13  Wallace  397 

1872 

Van  Brocklin  v.  Tennessee 

117  U.  S.  151 

1886 

Veazie  Bank  v.  Fenno 

8  Wallace  533 

1869 

Di\7siON  OF  Powers  between  States  and  Nation 

Barron  v.  Baltimore 

7  Peters  243 

1833 

Chae  Chan  Ping  v.  United  States  (Chinese  Exclusion 

Case) 

130  U.  S.  581 

1889 

Cohens  v.  Virginia 

6  Wheaton  264 

1821 

De  Lima  v.  Bidicell 

182  U.  S.  I 

1901 

Fairbatik  v.  United  States 

181  U.  S.  283 

1901 

Fong  Yue  Ting  v.  United  States 

149  U.  S.  698 

1893 

Gibbons  v.  Ogden 

9  Wheaton  i 

1824 

Giltnan  v.  Philadelphia 

3  Wallace  713 

1866 

Houston  V.  Moore 

5  Wheaton  i 

1820 

Juilliard  v.  Grcenman  (Leeal  Tender  Case) 

110  U.  S.  421 

1884 

Kansas  v.  Colorado 

206  U.  S.  46 

1907 

McCulloch  V.  Maryland 

4  Wheaton  316 

1819 

719 


720 


COMPARATIVE   FREE   GOVERNMENT 


Murray^s  Lessee  v.    The  Hobokcn   Land  &•  Im- 
provement Co. 
Sturges  V.  Croicninshield 
United  States  v.  Fisher 
United  Stales  v.  J  it  Toy 


18  Howard  272  1856 

4  Wheaton  122  1819 

2  Cranch  358  1804 

198  U.  S.  253  1905 


Relation  of  States  to  One  Another 


Atlierton  v.  Atherton 

181  U.  S. 155 

1901 

Blake  V.  McClung 

172  U.  S.  239 

1898 

Bolln  V.  Nebraska 

176  U.  S.  83 

1900 

Escanaha  or  Lake  Mich, 

igan 

Transportation  Co.  v. 

Chicago 

107  U.  S.  678 

1883 

Kentucky  v.  Dcnnison 

24  Howard  66 

1861 

Lascelles  v.  Georgia 

148  U.  S.  537 

1893 

McCready  v.  Virginia 

94  U.  S.  391 

1877 

Paul  V.  Virginia 

8  Wallace  168 

1869 

Roberts  v.  Reilly 

116  U.  S.  80 

1885 

Virginia  v.  Tennessee 

148  U.  S.  503 

1893 

Ward  V.  Maryland 

12  Wallace  418 

1871 

Wisconsin  v.  Pelican  Insure 

ncc  Co. 

127  U.  S.  265 

1888 

Relations  among  Departments  of  Government 


Georgia  v.  Stanton 

6  Wallace  50 

1867 

Gordon  V.  United  States 

2  Wallace  561 

1865 

Kilbourn  v.  Thompson 

103  U.  S.  168 

1881 

Marbiiry  v.  Madison 

I  Cranch  137 

1803 

Michigan  Central  Railroad  Co.  v.  Powers 

201  U.  S.  24s 

1906 

Mitchell  V.  Clark 

no  U.  S.  633 

1884 

Public  Clearing  House  v.  Coyne 

194  U.  S.  497 

1904 

Sinking  Fund  Cases 

99  U.  S.  700 

1879 

United  States  v.  Fcrreira 

13  Howard  40 

1851 

Civil  and  Political 

Rights 

Barron  v.  Baltimore 

7  Peters  243 

1833 

Civil  Rights  Cases 

109  U.  S.  3 

1883 

Dred  Scott  v.  Sand  ford 

19  Howard  393 

1857 

Y.x  parte  Jackson 

96  U.  S.  727 

1S78 

V.\  parte  Sicbold 

100  U.  S.  371 

1880 

Ex  parte  Yarbrough 

no  U.  S.  651 

1884 

Ilurliuto  V.  California 

iioU.  S.  516 

1884 

Logan  V.  United  States 

144  U.  R.  263 

1892 

Minor  v.  Uappcrselt 

21  Wallace  162 

187s 

Pope  V.  Williams 

193  U.  S.  621 

1904 

Public  Clearing  House  v.  Coyne 

194  U.  S.  497 

1904 

Slaughter  House  Cases 

t6  Wallace  36 

1873 

Straudcr  v.  West  Virginia 

100  U.  S.  303 

1880 

CASES   IN  AMERICAN   CONSTITUTIONAL  LAW         72I 


United  States  v.  Tarhlc  (Tarble's  Case) 
United  States  v.  Wong  Kim  Ark 
Ward  V.  Maryland 


13  Wallace  397 
169  U.  S.  649 
12  Wallace  418 


1872 
1898 
1871 


Constitutionality  of  Legislative  Acts 


Colder  v.  Bull 
Fletcher  v.  Peck 
Marbury  v.  Madison 
Norton  v.  Shelby  County 
United  States  v.  Peters 


3  Dallas  386 
6  Cranch  87 
I  Cranch  137 
118  U.  S.  425 
5  Cranch  115 


1798 
1810 
1803 
1886 


Jurisdiction  of  the  Courts 

Ableman  v.  Booth 

Ames  V.  Kansas 

Chishohn  v.  Georgia 

Claflin  V.  Houseman 

Cohens  v.  Virginia 

Debs,  in  re 

Ex  parte  McCardle 

Foster  v.  Ncilson 

Kiernan  v.  Portland 

Marbury  v.  Madison 

Martin  v.  Hunter's  Lessee 

Neagle,  in  re 

Ohio  &°  Mississippi  R.  R.  Co.  v.  Wheeler 

Osborn  v.  Bank  of  the  United  States 

South  Dakota  v.  North  Carolina 

Tennessee  v.  Davis 

The  Moses  Taylor 

United  States  v.  Texas 


Taxation 
Brown  v.  Maryland 
Collector  v.  Day 
Crandall  v.  Nevada 
Davidson  v.  A'^CtC  Orleans 
Dooley  v.  United  States 
Hagar  v.  Reclamation  District 
Hylton  V.  United  States 
Knou'lton  v.  Moore 
License  Tax  Cases 
Loan  Association  v.  Topeka 
McCray  v.  United  States 
McCulloch  V.  Maryland 

Pollock  V.  Farmers'  Loan  b"  Trust  Co.  (Income  Tax 
Case) 

3A 


21  Howard  506 

1859 

III  U.  S.  449 

1884 

2  Dallas  419 

1793 

93  U.  S.  130 

1876 

6  Wheaton  264 

1821 

158  U.  S.  564 

1895 

7  Wallace  506 

1869 

2  Peters  253 

1829 

223  U.  S.  151 

1912 

I  Cranch  137 

1803 

I  Wheaton  304 

1816 

135  u.  S.  I 

1890 

I  Black  286 

1862 

9  Wheaton  738- 

1824 

192  U.  S.  286 

1904 

100  U.  S.  257 

1880 

4  Wallace  41 1 

1867 

143  U.  S.  621 

1892 

12  Wheaton  419 

1827 

II  Wallace  113 

1871 

6  Wallace  35 

1868 

96  U.  S.  97 

1878 

183  U.  S.  151 

1901 

III  U.  S.  701 

1884 

3  Dallas  171 

1796 

178  U.  S.  41 

1900 

5  Wallace  462 

1867 

20  Wallace  655 

1875 

195U.  S.  27 

1904 

4  Wheaton  316 

1819 

157  U.  S.  429 

1895 

158  U.  S.  601 

1895 

722 


COMPARATIVE  FREE   GOVERNMENT 


Springer  v.  United  Slates 
State  Tonnage  Tax  Cases 
Veazie  Bank  v.  Fenno 


I02  U.  S.  586 
12  Wallace  204 
8  Wallace  533 


1871 
1869 


FiNANaAL  Powers  Other  than  Taxation 


Briscoe  v.  Batik  of  Kentucky 
Craig  V.  State  of  Missouri 
Hepburn  v.  Griswold 
Juilliard  v.  Grcenman 
Lane  County  v.  Oregon 
Legal  Tender  Cases 


II  Peters  257 

1837 

4  Peters  410 

1830 

8  Wallace  603 

1870 

no  U.  S.  421 

1884 

7  Wallace  71 

1869 

12  Wallace  457 

1871 

326 

343 


Interstate  and  Foreign  Commerce 

Athanasaw  v.  United  States  227  U.  S. 
Austin  V.  Tennessee  179  U.  S. 
Baltimore  &"  Ohio  Railway  Co.  v.  Interstate  Com- 
merce Commission  221  U.  S.  612 
Bowman  v.  Chicago  6*  N.  IV.  Raihcay  Co.  125  U.  S.  465 
Brown  v.  Maryland  12  Wheaton  419 
Champion  v.  Ames  (The  Lottery  Case)  188  U.  S.  321 
Cooky  V.  Board  of  Wardens  12  Howard  299 
Debs,  in  re  158  U.  S.  564 
Geer  v.  Connecticut  161  U.  S.  519 
Gibbons  v.  Ogdcn  9  Wheaton  i 
Gompers  v.  Buck's  Stove  b"  Range  Co.  221  U.  S.  418 
Gompers  v.  United  States  233  U.  S.  604 
Henderson  v.  Mayor  of  New  York  92  U.  S.  259 
Hoke  V.  United  Slates  227  U.  S.  308 
Houston  b"  Tex.  Central  R.R.  Co.  v.  Mayes  201  U.  S.  321 
Houston,  E.  (s"  W.  Texas  Railway  Co.  v.  United 

Stales  (Shreveport  Case)  234  U.  S.  342 
Howard  v.  Illinois  Central  Railway  Co.  207  U.  S.  463 
Kansas  v.  Colorado  206  U.  S.  46 
Leisy  v.  Hardin  135  U.  S.  100 
License  Cases  5  Howard  504 
I^ewe  V.  Lawler  fDanhurj'  Hatters'  Case)  208  U.  S.  274 
Minnesota  v.  Barber  136  U.  S.  313 
Northern  .Securities  Co.  v.  United  States  193  U.  S.  197 
Passenger  Cases  7  Howard  283 
Paul  V.  Virginia  8  Wallace  168 
Pensacola  Telegraph  Co.  v.  Western  Union  Tele- 
graph Co.  96  U.  S.  1 
Plumlry  v.  Massachusetts  155  U.  S.  461 
Postal  Telegraph  Cable  Co.  v.  Adams  155  U.  S.  688 
Rahrer,  in  re  140  U.  S.  545 
Simpson  v.  Shepard  (Minnesota  Rate  Case)  230  U.  S.  352 
Smyth  V.  Ames  169  U.  S.  466 


1913 
1900 

1911 
1888 
1827 
1903 
1851 
189s 
1896 
1824 
1911 
1914 
1876 

1913 
1906 

1914 
1908 
1907 
1890 
1847 
1908 
1890 
1904 
1849 
1869 

1878 
1894 

1895 
1891 

1913 


CASES   IN  AMERICAxN   CONSTITUTIONAL  LAW         723 


Standard  Oil  Co.  v.  United  States  221  U.  S.  i 

The  Daniel  Ball  10  Wallace  557 

United  States  v.  American  Tobacco  Co.  221  U.  S.  106 

United  States  v.  E.  C.  Knight  Co.  156  U.  S.  i 

United  Stales  v.  Ohio  Oil  Co.,  et  al.  234  U.  S.  548 

Vance  v.  Vandcrcook  170  U.  S.  438 

Wabash,  St.  L.  &  Pacific  Railway  Co.  v.  Illinois  118  U.  S.  557 

Ward  V.  Maryland  12  Wallace  418 

Welton  V.  Missouri  91  U.  S.  275 

Western  Union  Telegraph  Co.  v.  Kansas  216  U.  S.  i 


1911 
1871 
1911 

189s 
1914 


1871 
1876 
1910 


Due  Process  and  Equal  Protection  of  the  Law 


Allgeyer  v.  Louisiana  165  U.  S.  578 

Barbier  v.  Connolly  113  U.  S.  27 

Debs,  in  re  158  U.  S 

Hagar  v.  Reclamation  District  iii  U.  S 

Hurtado  v.  California  no  U.  S 

McKane  v.  Durston  153  U.  S 

Missouri  v.  Lewis  loi  U.  S 

Missouri  Pacific  Railway  Co.  v.  Nebraska  164  U.  S 
Murray's  Lessee  v.   The  Hoboken  Land  b"  Im- 
provement Co.  18  Howard  272 

Pembina  Silver  Mining  Co.  v.  Pennsylvania  125  U.  S.  181 

Plessy  V.  Ferguson  163  U.  S.  537 

Smyth  V.  Ames  169  U.  S.  466 

Strauder  v.  West  Virginia  .  100  U.  S.  303 

Twining  v.  Neiv  Jersey  211  U.  S.  78 

YickWow  Hopkins  118  U.  S.  356 


564 

701 

516 

684 

22 

403 


897 

885 

89s 
884 
884 
894 
880 
896 

856 
888 
896 
898 
880 
908 


Obligation  of  Contracts 

American  Smelting  &•  Refining  Co.  V.Colorado  204  U.  S.  103  1907 

Charles  River  Bridge  Co.  v.  The  Warren  Bridge  Co.  1 1  Peters  420  1837 

Fletcher  v.  Peck  6  Cranch  87  1810 

Gelpcke  V.  Dubuque  i  Wallace  175  1864 

Lehigh  Water  Co.  v.  Easton  "121  U.  S.  388  1887 

Long  Island  Water  Supply  Co.  v.  Brooklyn  166  U.  S.  685  1897 

New  Jersey  v.  Wilson  7  Cranch  164  1812 

Norlhiveslern  Fertilizing  Co.  v.  Hyde  Park  97  U.  S.  659  1878 

Ogden  V.  Saunders  12  Wheaton  213  1827 

Trustees  of  Dartmouth  College  v.  Woodward  4  Wheaton  518  18 19 


Police  Power 


Bacon  v.  Walker 

Booth  V.  Illinois 

Bosley  v.  McLaughlin 

Champion  v.  .4  mcs  (The  Lottery  Case) 


204  U.  S.  311 
184  U.  S.  425 
236  U.  S.  385 
188  U.  S.  321 


1907 
1902 
19 1 5 
1903 


724 


COMPAR,\TIVE   FREE   GOVERNMENT 


Chicago,   Burlington   ^   Quincy   Railway   Co.   v. 

McGuirc 

219  U.  S.  549 

1911 

Denl  V.  West  Virginia 

129  U.  S.  114 

1889 

Escanaba  d*  Lake  Michigan  Transportation  Co.  v. 

Chicago 

107  U.  S. 678 

1883 

Hennington  v.  Georgia 

163  U.  S.  299 

1896 

Hoke  V.  United  States 

227  U.  S.  308 

1913 

Holden  v.  Hardy 

169  U.  S.  366 

1898 

License  Cases 

5  Howard  504 

1847 

Miller  v.  Wilson 

236  U.  S.  373 

191S 

Mngler  v.  Kansas 

123  U.  S.  623 

1887 

Midler  v.  Oregon 

208  U.  S.  412 

1908 

Miinn  V.  Illinois 

94  U.  S.  113 

1877 

Mutual  Film  Corporation  v.  Industrial  Commission 

of  Ohio 

236  U.  S.  230,  247 

1915 

Noble  State  Bank  v.  Haskell 

21911.5.104,575 

1911 

Northwestern  Fertilizing  Co.  v.  Hyde  Park 

97  U.  S.  659 

1878 

Plessy  V.  Ferguson 

163  U.  S.  537 

1896 

Slaughter  House  Cases 

16  Wallace  36 

1873 

Smyth  V.  Ames 

169  U.  S.  466 

1898 

Stone  V.  Mississippi 

loi  U.  S.  814 

1880 

Treaty-making  Power  and  Foreign  Relations 

Chae  Chan  Ping  v.  United  States  (Chinese  Ex- 
clusion Case) 
Cherokee  Tobacco  Case 
De  Geofroy  v.  Kiggs 
Downcs  V.  Bidwcll 
Ex  parte  Baiz 

Fong  Vue  Ting  v.  United  States 
Foster  v.  Neilson 
Head  Money  Cases 
Jones  V.  United  States 
Terlindcn  v.  Ames 

United  Stales,  ex  rel.  Turner  v.  Williams 
United  .States  v.  Lee  Yen  Tai 
United  .Slates  v.  Palmer 
Ware  v.  Hylton 
Whitney  v.  Robertson 


130  U.  S.  581 

1889 

II  Wallace  616 

1871 

133  U.  S.  258 

1890 

182  U.  S.  244 

1 901 

135  U.  S.  403 

1890 

149  U.  S.  698 

1893 

2  Peters  253 

1829 

112  U.  S.  580 

1884 

137  U.  S.  202 

1890 

184  U.  S.  270 

1902 

194  U.  S.  279 

1904 

185  U.S.  213 

1902 

3  Wheaton  610 

1818 

3  Dallas  199 

1796 

124  U.  S.  190 

1888 

INDEX 


(^ 


INDEX 


Act  of  Settlement,  in  England  (1701), 
425,  428,  525. 

Adams,  G.  B.,  and  Stephens,  H.  M., 
Select  Documents,  428,  434. 

Adams,  John,  addressed  Congress,  71, 
306;  election  of,  72;  judicial  ap- 
pointments, 23s  ;   issues  no  vetoes,  76. 

Adams,  John  Quincy,  issues  no  vetoes,  76. 

Adjournment  of  Congress,  rules  for,  121, 
122  ;  president's  power  of,  55. 

Administration  in  United  States  federal 
government,  56,  58,  96-114;  super- 
vision of,  335,  336;  reform  needed, 
114.  376,  377;  in  States,  361-377. 
See  also  Executive  power. 

Admiralty,  jurisdiction  in  United  States 
federal  courts,  233,  251,  252,  253,  254, 
261,  264,  26s;  in  England,  530-532; 
first  lord,  436. 

Advowsons,  legally  private  property, 
520. 

Agrarian  party,  in  Germany,  611. 

Agriculture,  commissioner  for,  374; 
English  board  president,  436. 

Agriculture  Committee,  of  House  of 
Representatives,  159. 

Agriculture,  department  of,  in  Argentina, 
681;  France,  567;  United  States, 
48,  91,  97,  106,  108. 

Alabama,  State  constitutions,  344  ;  leg- 
islature, 349 ;  on  judicial  circuit,  244. 

.\lask.a,  appeal  from  courts,  263 ;  in 
nominating  convention,  192 ;  on 
judicial  circuit,  245  ;  resources  of,  106. 

Alfred,  king  of  England,  414. 

Aliens,  acquire  citizenship,  324,  325 ; 
exercise  suffrage,  320;  status  of 
women,  323;  parties  to  suit,  259,  260, 
264. 

Allotments  Act  in  England  (1885),  534. 

Alsace-Lorraine,  electoral  district  of 
Germany,  O03. 

Ambassadors,  appointed,  59,  61,  64; 
right  to  receive,  66 ;  and  federal  judi- 
ciary. 251,  254,  260,  261. 

Amendments.     Sec  Constitution. 


.\merican  colonies.     See  United  States. 

American  Political  Science  Association 
Proceedings,  360. 

American  Political  Science  Review,  cited, 
17,  82,  139,  141,  159,  267,  667,  688. 

An  Analysis  of  System  of  Government 
throughout  the  British  Empire,  cited, 
549- 

Anarchists,  in  France,  573. 

Angles,  invade  England,  551. 

Anglo-Saxon,  judicial  system,  630; 
democracies,  580,  582  ;  legislative  gov- 
ernment system,  375,  694,  697. 

Annapolis  (Md.),  convention  at,  18. 

Anne,  queen  of  England,  428,  433,  436, 
496,  500 ;   veto  of,  489. 

Anson,  Sir  William  R.,  Law  and  Custom 
of  the  Constitution,  411,  421,  423,  428, 
434,  435,  436,  446,  458,  477,  490,  532. 

Anti-Masonic  Party,  nominating  con- 
vention, 190. 

Anti-trust  legislation,  112,  300,  301.  See 
also  Federal  Trade  Commission. 

Appeals : 

In  Argentina,  682 ;  in  colonial 
courts,  16;  in  England,  405,  526,  530, 
586;  France,  571;  Switzerland,  625, 
626,  62S-630,  634,  641 ;  in  United 
States,  107,  234,  236,  239,  241,  248, 
249,  253,  260-265;  State  courts,  381, 
382,  390.  . 

Appointments  : 
In  Chile,  664. 
In  France,  565. 
In  Germany,  607. 
In  Switzerland,  642. 
In  United  Slates,  president's  power 
of,  58-62  ,83,  112;  Senate  confirms,  34, 
138-140,   218,  305,  306;    relation  to 
party    politics,    304 ;     in    the   several 
States,  366-368.     Sec  also  Civil  sersnce 
and  Spoils  system. 

.Vppropriations,  in  England,  452,  464, 
465 ;  in  United  States,  controlled  by 
Congress,  68,  90,  91,  117;  divided 
responsibility  for,  162,  163. 


728 


INDEX 


Appropriations  Committee,  of  House  of 
Representatives,  159;  of  Senate,  133. 

.Arbitration,  French  courts  for,  554;  in 
New  Zealand,  545;  in  Switzerland, 
628,  645. 

Archives,  custodian  of,  99,  372. 

Argentina  : 

Progressive  state,  659,  663,  672, 
684-6S6;  federal  type  of  government, 
668,672;  described,  672-687. 

Argentina  and  Australia: 

progress  compared,  684-686. 

Argentina  and  France: 

governments  compared,  686,  687. 

Argentina  and  United  States : 

development  compared,  672,  673; 
federal  systems,  673-674, 679, 680,  682. 

Arizona,  modifies  Constitution,  310. 

Arkansas,  on  judicial  circuit,  244. 

Army,  in  France,  565,  575 ;  in  United 
States,  under  federal  control,  7,  55-57, 
117.  See  also  Military  affairs  and  War 
department. 

Arrondissements,  in  France,  557, 567, 568, 
569. 

Arthur,  Chester  A.,  vetoes,  76. 

Articles  of  Confederation,  in  United 
States,  4,  5  ;  negative  influence  of,  17  ; 
proposed  revision,  "18;  weakness,  18, 
255 ;  no  judiciary,  232.  See  also 
Confederation. 

Asquith,  Henry,  English  prime  minister, 
472. 

Attainder,  forbidden  in  United  States,  8. 

Attorney  General,  in  United  States, 
office  created,  97 ;  duties,  104,  105 ; 
relation  to  federal  courts,  247 ;  suc- 
cession to  presidency,  48 ;  in  State 
administration,  372.  See  also  Justice 
department. 

Auditor,  in  State  administration,  372, 
373- 

Australia  : 

Constitutional  experiments,  501  ; 
fcfleralion  formed,  545,  691  ;  Con- 
stitution, 545-547;  Parliament,  546, 
547  ;  judiciary,  546,  547  ;  interpreta- 
tion of  Constitution,  546,  547 ;  re- 
lation to  Crown,  485. 

Australia  and  Canada : 

constitutions  compared,  545,  546. 

Australia  and  South  Africa  : 

constitutions  compared,  548. 

Australia  and  United  States: 

interpretation    of    Constitution    com- 


pared, 303;   federation,  692.     See  also 

Argentina  and  Australia. 
Austria,   in  Charlemagne's  empire,  592 ; 

ruling  dynasty,  593,  595 ;    population, 

594,  596 ;  excluded  from  Germany,  597, 

598;   European  power,  649. 
Autocracy  in   Germany,   599-601,   605- 

608,  612. 

Baden,  and  the  German  empire,  602. 
Bagehot,  Walter,  cited,  399,  480,  483, 

485,    588;     The    English    Constitution, 

396,  402,  408,  446,  458,  480,  490. 
Balance  of  powers,  in  United  States  Con- 
stitution, 5,  6.     See  also  Separation  of 

powers. 
Baldwin,  Simeon  E.,  American  Judiciary, 

280,  391. 
Balfour,  A.  J.,  position  on  tariff  question, 

469 ;  Conservative  leader,  442. 
Balkan  States,  origin  of,  649,  653. 
Ballinger,  Richard  A.,  investigation  of, 

92. 
Ballot,  the  short,  advised,  358. 
Balloting,  in  national  conventions,  198, 

199. 
Balmaceda,  Jos6  Manuel,  president  of 

Chile,  668. 
Bank  of  United  States,  10,  298,  299. 
Banking,  in  Germany,  605 ;    in  United 

States,  102,  265,  299,  373. 
Banking   and    Currency    Committee    of 

House  of  Representatives,  158,  159. 
Bankruptcy,     controlled    by    Congress, 

117;      in     federal     courts,     263-265; 

concurrent  jurisdiction  in,  8. 
Barbarossa,  Frederick,  German  emperor, 

SQ3- 

Bavaria  and  the  (German  empire,  602, 
605. 

Beaconsfield,  Benjamin  Disraeli,  Lord, 
leader  of  Conservatives,  442 ;  rela- 
tion to  Crown,  481 ;  prime  minister, 
4q6. 

Beard,  Charles  A.,  American  Government 
and  Politics,  13,  21,  27,  52,  53,  58,  72, 
80,  115,  121,  124,  157,  170,  175,  189, 
230,  23s.  24s.  267,  280,  289,  294,  296, 
306,  318,  339.  360,  367.  368,  374,  377, 
391;  Readings  in  American  Govern- 
ment and  Politics,  21,  53,  80,  115,  149; 
The  Supreme  Court  and  the  Constitu- 
tion, 267,  280. 

Beckct,  Thomas  a,  opposes  Henry  \1, 
517,  523- 


INDEX 


729 


Belgium,  cabinet  system,  580;  constitu- 
tional government,  650,  651;  colonial 
empire,  650 ;   relation  to  Europe,  649. 

Bicameral  legislatures  in  States,  347  ; 
proposal  to  aliolish,  354 ;  in  England, 
644;  Switzerland,  627,  641.  See  also 
the  several  legislatures. 

Bill  of  Rights,  in  England,  409,  426;  in 
United  States  Constitution,  285,  326. 

Birmingham  Liberal  Association,  under 
Chamberlain,  507  ;  plan  fails,  512,  513. 

Bismarck,  Otto,  Prince  von,  German 
chancellor,  598,  599,  603,  606,  607,  611, 
695;  dismissed,  607  ;  Reflcclions,  boi. 

Blaine,  James  G.,  defeated,  46. 

Blakeslee,  George  H.,  editor,  688. 

Blockades,  president  may  declare,  57. 

Blount,  William,  impeacliment  of,  141. 

Board  of  Education.     See  Education. 

Board  of  Trade.     See  Trade. 

Bodley,  John  E.,  France,  581. 

Boers,  colonize  South  Africa,  547  ;  rela- 
tion to  English,  485  ;  in  South  African 
Union,  695. 

Bolln  V.  Nebraska,  cited,  309. 

Bonapartists,  in  France,  580. 

Bordeaux,  local  government,  569. 

Boss  system,  in  United  States,  202,  229, 
383  ;  in  South  .America,  683.  See  also 
Corruption  in  politics. 

Boston,  resistance  to  tea  tax  at,  506. 

Botha,  Louis,  prime  minister  of  Union  of 
South  Africa,  548 ;  loyal  subject,  458. 

Boulanger,  George  E.  J.,  trial  of,  577,  578. 

Boundaries,  disputes  concerning,  256; 
of  States,  313. 

Bourbons,  French  dynasty,  552,  553,  555, 
563. 

Boyn©,  Battle  of  the,  522,  536. 

Brazil,  presidential  government,  663 ; 
federal  type,  668,  669,  672. 

Bribery,  in  nominating  conventions,  202  ; 
in  elections,  229. 

British  Empire.  See  England  and  the 
several  colonies. 

Brown,  Peter  H.,  History  of  Scotland,  539. 

Bryan,  W.  J.,  speeches  printed,  215. 

Bryce,  James,  Holy  Roman  Empire,  591, 
595,  601 ;  Studies  in  History  and  Juris- 
prudence, 585,  591;  The  American 
Commonwealth,  13,  19-21,  30,  37,  51, 
■53.  80,  92,  95,  143,  144,  ISO,  163,  164, 
17s,  201,  204,  218,  294,  300,  306,  318, 
339,  345.  360,  377,  383,  391,  411,  698. 

Buchanan,  James,  vetoes,  76. 


Budget,  in  England,  476,  477 ;   of  1909, 

463,  501- 
Buenos  Aires,  and  state  of  siege,  676. 
Bulgarians,  war  with  Greeks,  654. 
Billow,  Bernhard  von,  Imperial  Germany, 

600,  601,  606. 
Bundesrath,    of    German    Empire,    602, 

603 ;    president,  604,  607 ;    functions, 

607,  608. 
Burgess,  John  W.,  Political  Science  and 

Comparative  Constitutional  Law,  323, 

328. 
Burke,  Edmund,  Works,  408. 
Burr,  Aaron,  vice-president,  40;    candi- 
date for  president,  286. 
Business  interests,  influence  legislation, 

228,  354. 
Byzantine  Empire,  decline  of,  592 ;    rule 

of,  653. 

Cabal,  in  reign  of  Charles  II,  427. 

CABINET  : 

As  a  system  of  government,  182, 
395-402,  639,  663,  687 ;  advantages, 
502-504. 

In  Argentina,  681. 

In  Chile,  665-668. 

In  England,  397-408,  432,  437-439, 
466,468;  history  of,  421-435;  rela- 
tion to  Crown,  397,  427,  480-482,  489, 
490;  to  Privy  Council,  424,  439;  to 
Parliament,  397,  439,  470,  471,  498, 
499,    501-504 ;     to    Prime    Minister, 

442,  443 ;  to  executive  and  judiciary, 
435-445;  to  party  system,  400,  401, 
412,  439,  513,  514;  responsibility  of, 
397,  438,  439;    qualities  of,  440,  441, 

443.  444.  473,  474,  509.  526,   527,  529. 
In     France,     562-565 ;      legislative 

work,  566,  570,  572-581 ;  administra- 
tive, 566-571 ;  not  a  partj'  organ,  580. 
In  United  States,  61,  81-95,  305; 
administrative  duties,  96-114;  not 
responsible  to  Congress,  93,  94. 

Csesars,  temporal  head  of  Roman  Em- 
pire, 592. 

Calendar  of  bills,  in  House  of  Represent- 
atives, 167. 

California,  on  judicial  circuit,  245. 

Cambridge  Modern  History,  cited,  539, 
655- 

Campaign.    See  Election  campaign. 

Canada,  federation  in,  540,  691,  692; 
relation  to  England,  484,  485,  521, 
544 ;    loyalty  to,  484,  693,  694 ;    con- 


730 


INDEX 


stitutional  system,  501,  S40-545 ; 
governor  general,  541,  542.  544;  privy 
council,  541,  543;  Parliament,  541- 
544;  judiciarj',  542-544;  party  sys- 
tem, 541,  542;  provinces,  691 ;  civil 
war  of  1837,  540. 

Canada  and  England,  constitutional 
systems  compared,  541. 

Canada  and  South  Africa,  constitutions 
compared,  548. 

Canada  and  United  States,  constitutions 
compared,  540,  541.  See  also  Aus- 
tralia and  Canada. 

Candidate  for  president,  in  nominating 
conventions,  198-200 ;  chooses  na- 
tional committee  chairman,  208. 

Canon  law,  relation  to  modern  Roman 
law,  592. 

Canterburj',  Archbishop  of,  519,  520;  in 
House  of  Lords,  460;  synod  of,  519, 
520. 

Cantons,  in  France,  567-568 ;  in  Switzer- 
land, 614,  615,  6ig,  621,  622,  695 ; 
inherent  powers,  618;  constitutions, 
643;  governmental  institutions,  622- 
624,  639;  judiciary,  625,  628,  629; 
legislation,  626,  627,  630;  representa- 
tion in  federal  legislature,  627,  641, 
642. 

Caracalla,  extended  citizenship,  584,  585. 

Camot,  Lazarc  H.,  French  president,  563. 

Carson,  Hampton  L.,  History  of  the  Su- 
preme Court  of  the  United  States,  237, 
238. 

Carter,  A.  T.,  English  Legal  Institutions, 
532- 

Cassimir-Pdrier,  J.  P.  P.,  French  presi- 
dent, 563. 

Caste  spirit,  and  free  government,  660. 

Catholics,  in  Canada,  O94;  (iermany, 
611  ;   Switzerland,  635,  636,  638,  694. 

Caucus,    in    Fngland,    580;     in    United 
States,  159,  305;    in  legislation,  134 
136,  172-174;   party  machinery,  186- 
189. 

Caudillo,  political  hoss  in  South  America, 
683. 

Cavaliers,  precursors  of  Tories,  494. 

Celtic  peoples,  habitat,  551. 

Censorship,  in  Germany,  596. 

Census,  in  Uniteil  St;itcs.  decennial,  146. 

Centralization,  in  federal  governments, 
692;  in  Chile,  668-671;  in  France, 
568-571 ;  in  South  America,  686,  687  ; 
Switzerland,  615,  618,  629,  635,  644; 


United  States,  9-11,  376;   opposition 
to,  4,  5,  9- 

Chairman  of  United  States  National 
Committee,  208,  209,  217. 

Chamber  of  Deputies,  in  French  Re- 
public, 556,  557,  558,  564,  570;  min- 
isterial access  to,  567 ;  responsibility 
of  ministers  to,  517;  organization, 
574-577- 

Chamberlain,  Joseph,  political  career, 
443.  507,  508,  513;  position  on  tarifi, 
467  ;  becomes  cabinet  minister,  507  ; 
party  organizer,  507-509. 

Chancellor : 

In  England,  of  the  Exchequer,  436, 
443,  476,  477  ;  of  Duchy  of  Lancaster, 
436.     See  also  Lord  Chancellor. 

In   Germany,   604-607,   613 ;    veto 
rights,  609. 
In  Switzerland,  633. 

Chancery,  English  court  of,  530-532 ; 
in  States  of  United  States,  382. 

Charities  and  corrections,  supervision  of, 
374- 

Charlemagne,  founder  of  empire,  592. 

Charles  I,  king  of  England,  427,  433,  494, 
524;   arbitrary  rule,  424. 

Charles  II,  king  of  England,  426,  427, 
433,  4Q4- 

Charles  XIII,  king  of  Sweden,  651. 

Charters,  for  municipalities,  336. 

Checks  and  balances  in  United  States 
Constitution,  28-30. 

Chesterfield,  Philip  Stanhope,  Lord, 
British  statesman,  430,  433. 

Chicago,  convention  of  i860  at,  210; 
headquarters,  216;  strike,  57. 

Chief  Justice,  of  United  States,  241 ; 
duties,  140,  242,  243. 

Chief  of  Staff,  in  American  Army,  103. 

Cliild  labor,  proposed  national  law,  300; 
Slate  laws  to  regulate,  358,  359. 

(!!hilc,  govcrnnieiil,  OO3-671. 

Chile  and  England,  cabinets  compared, 
663,  664. 

China,  United  States  Court  for,  245. 

Chinese,  in  United  States,  without  citi- 
zenship, 324,  325. 

Chisholm  v.  Georgia,  cited,  257. 

Christianity,  in  relaliuii  to  democracy, 
493;  to  Roman  Emjiirc,  583,  592. 

Church,  as  a  puliiical  power,  580,  592 - 
594;    in    Canada,    521;    in   England, 
438.  406,  516-523  ;  court  for,  43s.  527 
530;  in  France,  554  ;  in  Scotland,  534 ; 


INDEX 


731 


in    Switzerland,    621.     Sec   also    Dis- 
establishment. 

Churchill,  Lord  Randolph,  English 
statesman,  513,  514. 

Churchill,  Winston  S.,  Life  of  Lord 
Randolph  Churchill,  4g6. 

Circuit  Court  of  Appeals,  238,  239,  262- 
265 ;  procedure,  244,  245 ;  relations 
to  Federal  Trade  Commission,  iii. 

Circuit  Courts,  in  United  States,  236 ; 
reorganized,  238-240. 

Circuits,  in  England,  531 ;  for  United 
States  Judges,  244,  245. 

Cities.     See  Municipalities. 

Citizenship,  in  federal  State,  258;  in 
the  Roman  Empire,  584,  585 ;  in 
United  States,  287,  322-328. 

Civil  rights,  in  federal  courts,  265. 

Civil  service,  in  England,  440 ;  in  United 
States,  62,  63,  113,  304;  in  the  States, 
367.  See  also  Appointments  and 
Removals. 

Civil  Service  Commission,  in  United 
States,  109,  112,  376;  duties,  63,  112- 
114;  in  several  States,  374. 

Civil  Service  Reform  Committee,  in 
House  of  Representatives,  159. 

Claims,  court  of,  105,  263 ;  established, 
240,  247,  248,  255. 

Clark,  Walter,  cited,  268. 

Classified  service.     See  Civil  service. 

Clemenceau,  Georges,  South  America 
To-day,  688. 

Cleveland,  Grover,  as  president,  ^2; 
defeated,  45  ;  elected,  46 ;  cabinet,  87  ; 
appointments,  61 ;  removals,  63 ; 
vetoes,  75,  76;  during  railway  strike,  57. 

Coal,  in  Alaska,  106. 

Code  Napoleon  (1804),  promulgated, 
553 ;  importance  of,  589,  590 ;  in 
Germany,  595,  605  ;  Louisiana,  386. 

Code  of  191 2,  in  Switzerland,  618. 

Cohens  v.  The  State  of  Virginia,  cited,  252. 

Coinage,  controlled  by  federal  govern- 
ment, 7,  117  ;  prohibited  to  States,  8. 

Coke,  Sir  Edward,  chief  justice  of  Eng- 
land, 425;   position  on  judiciary,  526. 

Collector  v.  Day,  cited,  318. 

Collectors  of  Ports,  importance  of,  loi. 

Collins,  Jesse,  land  resolution,  473. 

Colonial  era,  in  American  history.  See 
United  States. 

Colonies  : 

British,  437,  540-549;  secretary  for, 
435.     See  also  the  several  colonics. 


United  States  dependencies,  118, 
437.  See  also  Hawaii,  Philippine 
Islands,  and  Porto  Rico. 

Colonies  department,  in  French  cabinet, 
567- 

Colorado,  on  judicial  circuit,  244. 

Commerce  department,  in  French  cabi- 
net, 567 ;  in  LTnited  States,  48,  97, 
108,  109.  See  also  Foreign  and  Inter- 
state commerce,  and  Trade. 

Commerce,  Industry,  and  Agriculture, 
Swiss  department  of,  623. 

Commission  government  in  cities,  368. 

Commissioner  of  Internal  Revenue, 
duties,  loi. 

Commissioner  of  Works,  first,  in  England, 
436. 

Commissioning  oflBcers,  president's  power 
of,  55- _ 

Commissions,  in  State  service,  358,  374- 
376;  in  Wisconsin,  342. 

Committee  system,  in  England,  452-454, 
476;  in  German  legislature,  607,  60S; 
in  United  States  Congress,  94,  133, 
134.  305,  452;  in  State  legislatures, 
350,  352,  371.  ^ 

Common  Law,  in  England,  406,  407 ; 
growth,  585-588;  in  United  States, 
19,  20,  265,  386-388;  compared  with 
Roman,  582,  687. 

Common  Pleas,  court  of,  in  England, 
523,  524;  in  States  of  United  States, 
382. 

Commons,  John  R.,  Proportional  Repre- 
sentation, 150. 

Communes,  in  France,  557,  567-569, 
697;  history  of,  570;  officials,  566, 
570;  in  Switzerland,  614,  622,  624, 
625,  628,  695. 

Compromises  of  United  States  Constitu- 
tion, 2i?><  128,  146. 

Comptroller,  -in  State  administration, 
373- 

Concurrent  jurisdiction,  of  federal  and 
State  courts,  8,  9,  261,  262,  386. 

Concurrent  powers,  in  Swiss  govern- 
ment, 618. 

Concurring  opinions,  in  Supreme  Court, 
243- 

Confederation,  defined,  3,  4,  689;  in 
Germany,  593,  596,  597,  689;  ended, 
598;  in  Switzerland,  615;  United 
States,  II,  689. 

Congress,  in  Argentina,  676-679,  6S0, 
682. 


732 


INDEX 


Congress,  United  States  legislature,  ii6; 
compared  with  Parliament,  ii6,  405; 
powers,  116-118,  324,  32s;  implied 
powers,  29S-301 ;  prohibitions,  8 ; 
rules  of  procedure,  121,  122;  pro- 
poses amendments,  285 ;  relation  to 
executive,  57,  71-74;  to  Cabinet,  89- 
93;  to  treasury'  department,  100;  to 
judiciary,  233-236,  250,  251,  260-262, 
272-274;  party  leadership  of,  172. 

See  also  Continental  Congress,  House 
of  Representatives,  and  Senate. 

Congressional  Campaign  Committee, 
chosen  by  caucus,  173;  organization 
of,  225-229. 

Congressional  districts,  148-150;  units 
of  representation,  192. 

Congressmen,  elections  and  qualifica- 
tions, 119,  120,  219;  compensation 
and  pri\'ileges,  122-124;  as  represent- 
atives, 125,  126. 

Connecticut,  colonial  legislature,  15; 
merges  into  State,  16,  17;  on  judicial 
circuit,  244. 

Conservation  of  resources,  investigation 
of,  92;  value,  106,  108;  regulated  by 
Congress,  118. 

Conservatism,  with  relation  to  constitu- 
tional readjustment,  281,  282. 

Conservative  National  Union,  organized, 
511;   character,  512,  513. 

Conservative  party,  in  Canada,  541 ;  in 
England,  451,  485;  relation  to  House 
of  Lords,  461,  462,  465,  500,  501 ;  party 
organization,  510-512,  514;  jKisilion 
towards  Labor  party,  472  ;  tariff,  469; 
Home  Rule,  472;  Church  of  England, 
469;  propose  referendum,  502;  E<lu- 
cation  Act,  440,  441 ;  bid  for  city  vote, 
496.     See  also  Tory  party. 

Constantinople,  capital  of  empire,  592, 

593- 
Constitution  : 

Meaning  of  term,  22,  408,  409; 
function  of,  270. 

Australian,  545-548,  692,  693. 

Danish,  of  1849,  652. 

English,  14,  15,  19,  403-411,  560, 
561;  unwritten,  22,  25;  originates  in 
local  government,  412-420;  relation 
to  religious  bodies,  516 ;  contradictions 
of,  410,  411. 

French,  ss^r^fn. 

(Jerman,  O02-O13,  695. 

Prussian,  597,  599,  (xx),  612. 


South  African  Union,  547,  548. 
South  American,  656-658,  661,  663, 
669,  673-675,  681,  683. 
Swedish,  651. 

Swiss,  615,  617,  618,  626,  627,  630, 
632,  635,  637,  689,  694;  amendments, 
619,  632,  643,  644. 

United  States,  sources,  14-21;  arti- 
ficiality, 399,  400;  framed,  4-6,  9, 
12,  14-21,  23,  24,  33-35,  41,  70; 
framers,  81,  127,  128,  132,  269,  282: 
principles  of,  22-29;  reverence  for, 
282,  290;  ratified,  10,35,  181,  285,  286, 
291,  689;  distribution  of  powers, 
6-9,  13  ;  executive  provisions,  55,  56, 
71,  81,  83,  102;  judiciary  established, 
231,  233,  250,  259,  260;  on  powers  of 
Congress,  116,  118,  119,  129,  139,  324; 
omissions  of,  47,  48,  178,  179;  strict 
construction  of,  181,  300,  301;  theory 
of  coordinate  powers,  266,  267 ;  extra- 
constitutional  features,  43,  50;  in- 
terpreted by  Supreme  Court,  12,  252, 
267;  contravened,  78;  modified,  41; 
readjusted  by  amendments,  8,  138, 
281-293 ;  method  of,  284,  285  ;  first 
ten  amendments,  see  Bill  of  Rights; 
nth  Amendment,  256,  257,  286;  12th 
Amendment,  40,  187,  188,  286,  296; 
i3lh  Amendment,  287;  14th  Amend- 
ment, 287,  319,  322,  323,  327,  328; 
15th  Amendment,  287,  319,  320,  322; 
16th  Ameiidinent,  287-290;  17th 
Amendment,  119,  131,  132,  288-290; 
readjusted  otherwise,  295-307 ;  rela- 
tions to  States,  308-310,  313-315,  318, 
319,  321,  329,  zii;  State  constitu- 
tions, 342-345 ;  imitated  by  other 
nations,  591,  693. 

Constitutional  Convention,  origin  of,  17, 
18  ;  action,  12,  24,  38,  41 ;  discussion  in, 
35;  meml)ers,  181,  267,  268.  See  also 
Comjiromises. 

Constitutional  Yearbook,  cited,  496. 

("onsular  bureau,  in  State  department, 
99. 

Consuls,  and  fcrlcral  courts,  255. 

Contested  elections,  decided  by  Congress, 
120. 

Contested  nominations,  in  nominating 
conventions,  19O,  197,  211. 

Continental  Congress,  failure  of,  5,  7,  17  ; 
calls  Constitutional  Convention,  18. 

(Contract  labor  cases,  in  federal  courts, 
265. 


INDEX 


733 


Contracts,  under  State  control,  7  ;  obli- 
gation may  not  be  impaired,  8,  310. 

Conventions,  place  in  politics,  505.  See 
also  National  Convention. 

Cooke,  George  W.,  History  of  Party, 
496. 

Cooley,  Thomas  M.,  Constitutional  Law, 
318,  328;  Treatise  on  Constitutional 
Limitations,  328,  339. 

Cooperation  in  Swiss  government,  632- 

634- 

Copyrights,  regulated  by  Congress,  117; 
decided  by  federal  courts,  261,  264, 
265. 

Corn  Laws  in  England,  organization  to 
abolish,  506,  507. 

Coronation  in  England,  a  parliamentary 
ceremony,  489. 

Corporations,  relation  to  state,  372; 
contributions  of,  213,  214;  demand  for 
regulation,  105,  iii;  control  of,  11, 
300;  taxes  on,  loi ;  conceded  citi- 
zenship, 258,  259;  and  14th  Amend- 
ment, 328;  for  transportation,  no. 

Corrupt  practices  acts,  358. 

Corruption,  in  Congressional  elections, 
120;  in  presidential  elections,  46; 
in  party  politics,  229. 

Corwin,  Edward  S.,  The  Doctrine  of 
Judicial  Review,  280. 

Council  of  Governor,  in  States,  384. 

Council  of  Ministers.  See  Cabinet;  in 
France. 

Council  of  State,  in  Chile,  665,  666;  in 
France,  565,  571. 

Council  of  States,  in  Switzerland,  621, 
627,  641,  642  ;  influence,  628,  633. 

Counterfeiting,  crime  against  federal 
laws,  117. 

County,  in  England,  constitutional  im- 
portance of,  412,  414. 

County,  in  United  States.  See  Local 
Government. 

County  Central  Committee,  in  party 
politics,  222-224. 

County  Councils  Act  (1888),  528. 

County  courts,  in  England,  413-415, 
417,  516,  523,  528,  529;  in  United 
States,  381,  382. 

Court  martials,  relation  to  pardons,  64. 

Courtney,  Leonard  Henry,  Working  of  the 
Constitution,  411,  446,  458. 

Courts.     See  Judiciary. 

Credentials,  in  nominating  conventions, 
196,  197,  210. 


Criminal  Appeal,  court  of,  in  England, 
531- 

Criminal  jurisdiction,  of  federal  courts, 
265  ;  State  courts,  339. 

Criminal  law,  and  pardoning  power,  366 ; 
faults  in  administering,  389,  390;  left 
to  States,  315. 

Cromwell,  Oliver,  in  English  history,  425, 
492. 

Crown,  in  English  system,  422,  423,  479, 
480,  483 ;  relation  to  Prime  Minister, 
447 ;  to  Cabinet,  397,  427,  436,  437, 
480-482,  489,  490;  to  Parliament, 
425-429,  466,  488,  489;  creates  peers, 
479,  481 ;  relation  to  judiciary,  424— 
426,  489,  524,  525;  head  of  church, 
518,519;  pardoning  power,  489 ;  rela- 
tion to  party  leadership,  442,  443 ; 
non-partisan,  480-482 ;  relation  to 
democracy,  478-490 ;  to  foreign  affairs, 
482 ;  symbol  of  unity,  483-485,  489, 
490 ;  relation  to  colonies,  484,  485 ; 
reviving  power  of,  490.  See  also 
Royal  family. 

Crown  colonies,  future  government,  549. 

Curia  regis,  in  English  system,  405,  421, 
492,  523,  524- 

Currency,  created  by  Congress,  7,  299 ; 
issued,  102  ;  taxation  of,  10;  reform,  73. 

Custom,  effect  on  constitutional  develop- 
ment, 303,  560. 

Customs  Appeals,  court  of,  240,  248, 
249. 

Customs  duties,  prohibited  to  States,  8 ; 
controlled  by  Congress,  116;  must  be 
uniform,  117  ;  under  Treasury  depart- 
ment, 100,  101. 

Dallinger,    Frederick    W.,    Nominations 

for  Elective  Office,  190. 
Danish  Conquest,  of  England,  404. 
Danube  River,  headwaters,  614. 
Davis,  Horace  A.,  cited,  267. 
Deadlocks,  in  Senatorial  elections,  131. 
Dealey,  James  Q.,  Growth  of  American 

State  Constitution,  360,  377. 
Debate,  freedom  of,  136. 
Decentralization,  in  States  system,  361, 

363.  376- 
Declaration  of  Independence,  in  United 

States,   690,    691  ;    effect   on   France, 

553  :   political  philosophy,  20. 
Defense,  in  care  of  Congress,  116,  117. 
Delaware,  State  Senate,  348;  on  judicial 

circuit,  244. 


734 


INDEX 


Delegated  powers,  of  federal  courts,  251. 

Democracy : 

Distrust  of,  14s;  development,  407, 
40S,  493,  550-552  ;  changing  character 
of,  486,  487 ;  relation  to  federal  gov- 
ernment, 689-697  ;  effect  of,  649 ;  the 
ultimate  problem  of  government,  655. 
In  England,  410,  447,  478-490,  529, 
539,  644;  extended  by  colonization, 
540 ;  in  the  empire,  549. 

In  France,  554,  589-591,  644. 
In  Germany,  611-613,  616. 
In  Scandinavian  countries,  651-653. 
In  South  .\merica,  656-658,  664,  670, 
671,  679,  682-684,  687. 

In  Switzerland,  614-616,  628-632, 
639,  644. 

In  United  States,  23,  36,  41,  49; 
relation  to  presidency,  34-36,  49,  190; 
to  judiciary,  273,  277,  391 ;  to  party 
systems,  125,  126,  185,  194,  203,  204, 
212,  230;  to  constitutional  changes, 
281,  290,  292-294;  to  State  policies, 
313,  341.  342.  354.  356-358,  376,  377- 

Democratic  party,  principles,  184,  185; 
attack  on  Supreme  Court,  279 ;  caucus, 
135;  organization,  217,  226,  227; 
nominating  conventions,  191-193, 
195,  199,  210;  campaigns,  215,  218; 
in  New  York  County,  223 ;  gerry- 
mander of,  150. 

Democratic-Republican  party,  principles, 
10,  i8i ;  party  system,  42,  186,  187; 
leaders,  85,  286. 

Denmark,  a  minor  state,  649;  govern- 
ment, 652,  653  ;  war  with  I'russia,  598. 

Departmental  reports  in  United  States, 
submitted  to  Congress,  91.  Sec  also 
the  several  departments. 

Departments,  as  French  governmental 
units,  568-571. 

Dependencies,  of  United  States.  Sec 
Colonies. 

Dicey,  Albert  V.,  The  Law  0/  the  Consti- 
tution, 402,  408,  423,  434,  446,  500, 
698. 

Dickinson,  G.  Lowes,  Development  of 
Parliament  during  the  Nineteenth  Cen- 
tury, 458,  497- 

Diet,  in  German  confederation,  596;  in 
Swiss  confeileral  ion,  617. 

Dillon,  John  F.,  Municipal  Corporations, 
334- 

Diplomacy,  controlled  by  president,  65 ; 
dif&culties  of,  91. 


Diplomatic  bureau,  in  State  department, 

99. 
Direct  legislation.    See  Legislation. 
Direct  primary.     See  Primaries,  direct. 
Direct  taxes,  and  the  Constitution,  283. 
Disestablishment,  in  England,  520,  521 ; 

in  Ireland,  522  ;  Wales,  522. 
Disraeli.    See  Beaconsfield. 
Dissent,  origin  of,  494,  519;    influence, 

521,  528;  political  sympathies,  496. 
Dissenting   opinions,    in    United    States 

Supreme  Court,  243. 
Distribution  of  powers,  in  United  States 

go\'ernment,  6-9,  20.    See  also  Sepa- 
ration of  powers. 
District  Attorneys,  of  federal  courts,  247. 
District  Courts,  of  United  States,  236, 

237,  245-247 ;    jurisdiction,  246,  247 ; 

reorganized,   238-240;    appeals  from, 

262,  264;  in  the  several  States,  382. 
District  of  Columbia,  citizens  of,  258; 

courts,   240,   249,   263 ;    militia,   1 24 ; 

how  governed,   437 ;    committee  for, 

iSQ. 
Divorce,  need  of  uniform  laws,  359. 
Dodd,  Walter  F.,  Modern  Constitutions, 

561,  617,  619,  655,  664,  665,  669,  673, 

674,  681. 
Domestic  relations,  under  State  control, 

7,  379- 
Domville-Fifc,  Charles  W.,  Great  States 

of  South  America,  688. 
Doughertj',  J.  Hampden,   The  Electoral 

System  of  the  United  States,  54. 
Drafting  bureaus,  for  State  legislatures, 

353.     Sec   also    Legislative   reference 

libraries. 
Dred  Scott  decision,  effect  of,  279,  323. 
Dublin,  capital  of  Ireland,  537. 
Duma,  establishment  of,  478. 
Dupriez,  L.,  Les  Ministres  dans  les  Prin- 

cipaux   Pays  d' Europe   et  d'Amirique, 

477- 
Durham,   Bishop  of,   sits  in   House  of 

Lords,  460. 
Dutch.    See  Boers  and  Holland. 
Duties.    Sec  Customs. 

Eastern  I^mpire.  Sec  Byzantine  Em- 
pire. 

Edinburi^h  Review,  cited,  485. 

Education,  in  Argentina,  684 ;  in  Eng- 
land, 435,  438;  in  l'"rance,  554;  in 
South  America,  659 ;  in  Swiss  govern- 
ment, 618,  621,  63s;  in  United  States, 


INDEX 


735 


7,  309,  43S;   national  bureau  of,  159. 
See  also  Public  Instruction. 

Education  Act,  in  England,  440. 

Education  Committee,  in  House  of  Rep- 
resentatives, 159. 

Edward  I,  king  of  England,  425,  518,  519, 
523 ;  attaches  Wales  to  Crown,  484 ; 
summons  representatives,  404. 

Edward  II,  king  of  England,  423. 

Edward  III,  importance  for  parliamen- 
tary history,  404,  423. 

Edward  VII,  diplomatic  successes  of, 
482;   social  welfare  interests,  482. 

Egerton,  Hugh  E.,  and  Grant,  W.  L., 
Canadian  Constitutional  Development, 
549;  Federation  and  Unions  within  the 
British  Empire,  549. 

Elections,  in  Argentina,  684 ;  in  Eng- 
land, 464,  514,  515;  in  France,  558, 
562,  577;  in  United  States,  for  presi- 
dent, 38-53,  209,  212-216,  220-224; 
of  judges,  383,  384;  controlled  by 
States,  338,  339;  in  the  States,  219- 
222,  320-323;   districts  for,  338. 

Electoral  college,  purpose  of,  39-41  ; 
failure  of,  41-43,  50 ;  present  function, 
44,  45  ;  abolition  suggested,  48. 

Electoral  commission  of  1876,  settle 
dispute,  47. 

Elizabeth,  queen  of  England,  493. 

Elliot,  Jonathan,  Debates,  291. 

Ely,  Richard  T.,  Property  and  Contract 
in  their  Relations  to  the  Distribution  of 
Wealth,  331,  332,  339- 

Engineers,  in  army,  103. 

England : 

A  European  power,  649 ;  insular  in- 
dependence, 550-551;  form  of  gov- 
ernment, 3,  4,395-531;  Constitution, 
14,  15,  19,  22,  25,  403-420;  historical 
development,  404-409,  412-433,  533; 
monarchy  in,  403, 404, 478,  479  {See  also 
Crown) ;  system  of  law,  19,  582,  585- 
588  {sec  also  Common  Law) ;  self-gov- 
erning colonies,  541,  549,  693.  see  also 
the  several  institutions  of  government, 
i.e.  Cabinet,  Constitution,  Crown, 
House  of  Commons„House  of  Lords,  etc. 

England  and  France: 

cabinets  compared,  398,  563,  564, 
566,  572.  575,  580. 

constitutions  compared,  559-561. 
executives  compared,  398,   563,  564. 
historical    development    compared, 
550-553,  555,  506. 


judiciary  compared,  590,  591. 

legislatures  compared,  565,  574,  577. 

party  system  compared,   573,   574, 
580,  581. 
England  and  Germany: 

legislatures  compared,  609. 

religious  reform  compared,  594. 
England  and  Switzerland: 

democracy  compared,  616,  631. 

executives  compared,  640. 

judiciary  compared,  644,  645. 

legislation  compared,  644,  645. 
England  and  United  States: 

cabinets  compared,  396-401. 

colonial  systems  compared,  437. 

constitutions  compared,  14,  15,  19. 
22,  29,  399,  400,  405,  409,  412,  501. 

church  policy  compared,  496. 

democratic  progress  compared,  485. 

educational  system  compared,  438. 

effects  of  custom  compared,  303. 

e.xecutives  compared,  403,  444,  639. 

financial  systems  compared,  137,  477. 

governmental  systems,  444-446,  505, 
506. 

judiciary  compared,  266,  267,  275, 
398,  399,  446,  630 ;  common  law  sys- 
tems, 19,  386-388;  equity  systems, 
253,  388. 

legislatures  compared,  19,  116,  123, 
136,  151,  173,  343- 

local  government  compared,  336, 
419,  420,  437,  438. 

militar>'  requirements  compared, 
487. 

party  systems  compared,  177,  182, 
183,  491,  498,  514,  515- 

patriotism  compared,  483,  484. 

public  opinion  compared,  30. 

speakership  compared,  155,  452. 

separation  of  powers,  29,  526,  527. 
Enock,  C.  Reginald,  Republics  of  Central 

and  South  America,  669,  688. 
Enrolled  Bills   Committee,  of  House  of 

Representatives,  169. 
Enumerated   powers,    in    United    States 

Constitution,  6. 
Episcopal  church  in  United  States,  521. 
See  also  Church  ;   in  Canada  and  Eng- 
land. 
Equal  Suffrage.     See  Woman's  suffrage. 
Equity    proceedings,    in    federal    courts, 

253,  264 ;   in  State  courts,  388. 
Essex,  number  of  electors,  449. 
Exchequer  court,  origin  of,  523,  524. 


736 


INDEX 


Excise.    See  Internal  revenue. 

Executive,  in  England,  397,  4.57;  in 
Swiss  Republic,  621-626;  in  United 
States,  25-28,  31,  33;  in  States,  345- 
347.  See  also  Crown,  Governors, 
Kaiser,  and  President. 

Experimentation,  in  State  government, 
35(^358. 

Experts,  in  administrative  offices,   114, 

375- 
Ex  post  facto  laws,  prohibited,  8. 
Extra-constitutional  rights  of  president, 

70;    of  party  government,   177,   178; 

of  the  cabinet,  81,  82. 
Extradition,     in     Argentina,     674;      in 

United   States,  98,  99;    between  the 

States,  315. 

Fairlie,  John  A.,  Local  Government  in 
Counties,  Toums,  and  Villages,  339, 
382;  National  Administration  of  the 
United  States,  59,  80,  107,  115. 

Farrand,  Max,  The  Federal  Constitution 
and  the  Defects  of  the  Confederation,  17, 
21. 

Federal  Assembly,  in  Switzerland,  621, 
623,  624,  625,  628,  632,  634,  641,  643. 

Federal  Council,  in  Switzerland,  621- 
626,  628,  633,  634,  638,  642. 

Federal  Pact,  in  Switzerland,  615. 

Federal  system,  defined,  3,  4,  7,  649,  689, 
696;  advantages  of,  12,  341 ;  in  Aus- 
tralia, 545,  691,  693;  in  Canada,  540, 
S41,  691,  692,  604;  in  South  Africa, 
692-694;  in  South  America,  668,  671, 
672,  684,  687  ;  in  Switzerland,  617-619, 
621-638,  689,  694,  695,  697  ;  ill  United 
Kingdom,  539;  in  United  States,  307, 
689-691,697;  relations  to  States,  31O 

319- 
Fetlcral   Trade   Commission,   organized, 

icx).  III  ;  duties,  112,  376. 
Federal  TriJjunal,  in  Switzerland,  621, 

625,  628,  629,  630,  634,  641. 
Federalist,  cited,  24,  39,  41,  54,  75,  76, 

80,    I2«.    141,    178,   26K,    280,    283,   284. 

Federalist  party,  in  United  Stales,  prin- 
ciples, 10,  181,  183;  elects  president, 
42;  leader,  8s;  develops  caucus,  187, 
188;  controls  courts,  235;  lacks 
organization,  187;   dissolves,  183. 

Fcuflal  system,  in  Europe,  551,  552;  de- 
cline of,  552,  553,  570,  629. 

Fillmore,  Millard,  uses  no  vetoes,  76. 

Finance,  in  England,  476;    in  France, 


575 ;  in  United  States,  99-102 ;  re- 
form needed,  97 ;  in  election  cam- 
paigns, 213—216,  222,  224,  227,  228, 
358.     See  also  Banking  and  Treasury. 

Finance  Committee,  in  Senate,  i33-i3S- 

Finance  department,  in  Argentina,  681 ; 
in  France,  566,  5O7.  See  also  Treas- 
ury department. 

Finance,  Industry,  and  Public  Works, 
department  in  Chile,  665,  667. 

Finley,  John  H.,  and  Sanderson,  John  F., 
The  American  Executive  and  Executive 
Methods,  76,  77,  80,  95,  115,  378. 

Florida,  in  election  of  1876,  47;  on  judi- 
cial circuit,  244. 

FoUett,  M.  P.,  The  Speaker  of  the  House 
of  Representatives,  175. 

Food  and  dairy  commission Cirs,  374. 

Ford,  Henry  Jones,  The  Rise  and  Growth 
of  American  Politics,  30,  54,  76,  125, 
144,  176,  182,  189. 

Foreign  aflairs,  in  England,  482 ;  secre- 
tary for,  436,  439;  in  United  States, 
7,  8,  90,  254 ;  president's  relations  to, 
55,  56,  64-69.  Sec  also  State  depart- 
ment. 

Foreign  AfTairs  and  Public  Worship 
departme;U,  in  Argentina,  681. 

Foreign  Aflairs  Committee,  in  House  of 
Representatives,  159. 

Foreign  Affairs  department,  in  Chile, 
665;  in  France,  566;  in  Switzerland, 
623. 

Foreign  commerce,  regulations  for,  117, 
312. 

Foreign  Relations  Committee,  in  Senate, 
68,  133,  134- 

Foreign  Secretary  in  England,  436; 
responsible  for  diplomacy,  439. 

I-'orcsts,  in  national  domain,  118;  su- 
pervised, 106. 

Foster  v.  Neilson,  cited,  69. 

I'ox,  Charles  James,  as  party  leader,  495. 

France : 

European  power,  649 ;  form  of  gov- 
ernment, 3,  24,  550,  697;  historical 
outline,  551-556;  in  Charlemagne's 
empire,  592 ;  separated  from,  593 ; 
constitutions  in,  22,  553-556;  Third 
Republic,  556-5SQ.  562;  alliance  with 
Russia,  565 ;  legal  system,  589-S91. 
631;  parlies  in,  491,  57.S-S76;  presi- 
dency, 398,  562-571.  Sec  also  the 
several  institution-p  of  government,  i.e. 
Cabinet,  Constitution. 


INDEX 


737 


France  and  Germany  : 

administration  compared,  608. 

reform  movements,  505. 
France  and  South  A  mcrka  : 

cabinet  system  compared,  663,  666- 
66g. 

progress,  658,  68  7. 
France  and  Switzerland: 

democracy  compared,  616. 

judiciary,  62g. 

statutes,  625. 
France  and  United  Slates: 

interrelations,  552,  553. 

cabinets  compared,  go. 

constitutions     compared,     S5g-56i, 

sgi- 

executives  compared,  57. 
judiciary  compared,  sgi. 
legislatures  compared,  565,  566. 
local  governments  compared,  568. 
party  systems  compared,  578.     See 
also  Argentina  and  France;    England 
and  France. 
Franchise,   restrictions  on,   in   England, 
482  ;   extension  of,  447,  507.     Sec  also 
Suffrage. 
Francis  II,  emperor  of  Austria,  titles,  595. 
Frankfort,  Constitution  at,  5g6,  sg7. 
Franking  privilege,  of  Congressman,  226. 
Franks,  of  German  origin,  551. 
Frederick,  emperor  of  Germany,  606,  607. 
Frederick  William  III,  of  Prussia,  595. 
Frederick  William  IV,  king   of   Prussia, 

sg7,  sg8. 

Free  debate,  restricted  in  House  of  Rep- 
resentatives, 165,  166. 

Free  Silver,  in  Democratic  convention, 
ig7. 

Freedom  of  religion,  guaranteed,  285. 

Freedom  of  speech,  guaranteed,  285. 

Freeman,  Edward  A.,  Growth  of  the  Eng- 
lish Constitution,  404,  623 ;  Woman 
Conquest,  420. 

Freemasonry,  in  France,  S7g. 

French,  Burton  L.,  cited,  isg. 

French,  in  Switzerland,  614. 

French-Canadians,  loyalty  of,  694. 

French  Revolution,  influence,  5g4,  595 ; 
effects  of,  553-555.  561,  568,  S7g,  62g; 
in  Switzerland,  616. 

Freund,  Ernest,  The  Police  Power,  330, 
331,  339- 

Gallia,  under  the  Roman  Empire,  551. 
Gambling,  State  laws  against,  337. 

3B 


Gardiner,  Samuel  R.,  Student's  History  oj 

England,  537. 
Garfield,  James  A.,  uses  no  vetoes,  76. 
General  Staff,  in  American  army,  103. 
Geographical     distribution,     of     U.     S. 

cabinet,  86,  87. 
Geological  Survey,  duties,  106,  107. 
George  I,  king    of    England,   429,   430, 

433,  519- 
George  II,  king  of    England,  42g,  430, 

433- 

George  III,  king  of  England,  445,  4g6; 
attempts  to  restore  royal  power,  430, 
431,  433;  rebellion  against,  ig,  553; 
uses  no  vetoes,  76. 

George  IV,  relation  to  cabinet,  431. 

George  V,  accession,  464 ;  coronation 
oath,  48g. 

Georgia,  defies  Supreme  Court,  257  ;  in 
judicial  circuit,  244. 

Germans,  in  Chile,  670;  in  Switzerland, 
614. 

Germany : 

European  power,  64g ;  historical 
sketch,  5g2-5gg ;  confederation  in, 
68g ;  federation,  616,  695,  6g6;  in- 
vasion of  France,  553 ;  war  with 
Denmark,  652;  treaty  with  France, 
556 ;  empire  formed,  602 ;  govern- 
mental system,  3,  12,  482,  602-613; 
merchant  marine,  650.  See  also 
Kaiser,  Prussia,  and  the  several  insti- 
tutions of  government. 

Germany  and  United  States: 

administrations  compared,  375. 
federation  compared,  605. 
See    also    England    and    Germany; 
France  and  Germany. 

Gerry,  Elbridge,  vice  president,  150. 

Gerrymandering,  term  defined,  i4g, 
150. 

Gettell,  Raymond  G.,  Introduction  to 
Political  Science,  28. 

Gilman  v.  Philadelphia,  cited,  8. 

Gladstone,  William  E.,  prime  minister, 
436,  480,  507;  cabinet  of  1881,  507; 
civil  service,  441 ;  Home  Rule  policy, 
46g,  508,  538;   party  program,  sog. 

Goodnow,  Frank  J.,  City  Government  in 
the  United  States,  33g;  Politics  and 
Administration,  i8g  ;  The  Principles  of 
the  Administrative  Law  of  the  United 
States,  30,  378. 

Gorman,  A.  P.,  chairman  of  National 
Committee,  218. 


738 


INDEX 


Governors,  in  Chile,  66g;  in  United 
States  colonial  period,  15,  34;  Stale 
executive,  89,  99,  361,  363 ;  duties, 
362-368;  prestige,  311;  influence  on 
legislation,  368-371. 

Grant,  U.  S.,  suspensory  power,  63 ; 
vetoes,  75,  76. 

Great  Seal,  in  State  department,  99. 

Greece,  confederation  in  ancient,  689, 
691 ;  modern  war  with  Bulgaria,  654. 

Green,  J.  R.,  History  of  the  English 
People,  413,  414,  420,  427 ;  Making 
of  England,  522;  Short  History  of  the 
English  People,  418,  425,  522. 

Gr^vy,  Jules,  French  president,  558;  re- 
signs, 563. 

Grisons,  Swiss  canton,  614. 

Gully,  W.  C.  (later  Viscount  Selby), 
Speaker  of  the  House  of  Commons,  45 1 . 

Habeas  Corpus  Act,  in  Great  Britain, 
19,  409,  675. 

Hague  Conferences,  on  federation,  696. 

Haines,  Charles  G.,  The  Amcri<:an  Doc- 
trine of  Judicial  Supremacy,  2S0. 

Ilall,  William  E.,  International  Law,  655. 

Hamilton,  Alcxanfler,  framer  of  Consti- 
tution, 282  ;  in  first  cabinet,  85  ;  as  a 
party  leader,  10,  180,  181,  186;  cited, 
39,  41,  74,  268,  269. 

Hanna,  Marcus,  chairman  of  National 
Committee,  218. 

Hapsburg,  House  of,  593 ;  in  Switzer- 
land, 615. 

Harrington,  James,  political  philosopher, 
20. 

Harris,  W.,  Radical  Party  in  Parliament, 
497- 

Harrison,  Benjamin,  election  of,  45; 
vetoes,  76. 

HarrJHon,  William  H.,  uses  no  vetoes,  76. 

Hart,  Albert  B.,  Actual  Government,  21, 
54,  us,  176. 

Hartington,  Spencer  Compton  Caven- 
dish, marquis  of,  political  leader,  480. 

Hawaii,  in  nominating  convention,  192; 
appeal  from  courts  263 ;  on  judicial 
circuit,  245. 

Hayes,  Rutherford  B.,  election,  47;  ve- 
toes, 76. 

Health.     See  Public  health. 

Ilcarn,  William  E.,  Government  of  Eng- 
land, 411,  477,  490. 

Henry  I,  icing  of  England,  405,  415,  416; 
issues  charters,  416,  492. 


Henry  II,  king  of  England,  405,  415, 417 ; 
influence  on  government,  517,  523,  535. 

Henry  III,  and  Magna  Charta,  416,  421 ; 
influence  on  growth  of  government, 
S18. 

Henry  IV,  a  parliamentary  king,  423. 

Henry  VII,  absolutist  tendencies,  425, 
506,  518,  524. 

Henry  VIII,  arbitrary  tendencies,  424, 
425,  447,  506,  518,  519,  524. 

Henry,  Patrick,  cited,  291,  292. 

Hesse,  and  the  German  empire,  602. 

High  Court  of  Justice,  in  England,  divi- 
sions of,  530-532. 

Highways.     See  Roads. 

Hinds,  Asher  C,  Precedents,  124,  148. 

Hinsdale,  Mary  L.,  A  History  of  the  Presi- 
dent's Cabinet,  82,  83,  95,  100. 

Hohenzollern  dynasty  in  Germany,  607. 

Holdsworth,  William  S.,  History  of 
English  Law,  532. 

HoUand,  a  minor  state,  649 ;  colonial 
empire,  650;  constitutional  govern- 
ment in,  650,  651. 

Holmes,  Justice  Oliver  Wendell,  cited. 
332. 

Holy  Roman  Empire,  history  of,  592-594. 

Home  department,  secretary  for,  436; 
controls  police,  438,  439,  489 ;  relation 
to  Scotland,  535. 

Home  Rule  for  Ireland,  508,  539;  a 
party  issue,  469,  472,  474. 

Home  rule,  in  United  States,  in  local 
aflfairs,  335,  336. 

Homestead  laws,  value  of,  106. 

Hopkins,  Senator  Albert  J.,  cited,  121. 

House  of  Commons  : 

In  British  empire,  410,  432;  im- 
portance of,  410,  447 ;  history,  404, 
405,  429,  447 ;  composition,  447-450, 
483;  dissolution,  449;  new  election 
for,  449-451 ;  committee  system,  452 
454,  476;  procedure,  452-458;  rela- 
tion to  cabinet,  470,  471,  498,  499;  to 
House  of  Lords,  462-465 ;  to  party 
system,  412;  special  functions,  476, 
524.     See  also  Parliament  and  Speaker. 

House  of  Deputies,  in  Argentina,  677- 
679,  682. 

Hoi'SE  of  Lords  : 

Origin,  404 ;  history,  459,  463 ; 
described,  459,  460;  composition  of, 
460,  461;  life  peers,  460,  525,  526; 
representative  peers,  460,  534,  537 ; 
procedure,  461-463 ;  judicial  aspects, 


INDEX 


739 


40s,  424,  463,  525,  530,  534.  537; 
relation  to  cabinet,  49g ;  party  sym- 
pathies, 496,  500 ;  reform  of,  479,  483, 
501-503 ;  relation  to  House  of  Com- 
mons, 447,  462-465. 

House  of  Representatives  : 

Colonial  prototypes,  16 ;  elections 
for,  226;  membership,  130,  147-151  ; 
'  procedure,  122,  158-176;  rules,  122, 
164-167;  functions,  40,  61,  68,  137, 
138,  141,306;  leadership  in,  173-175; 
term,  151-154;  popular  character, 
145,  146;  compared  with  Senate,  144, 
145,  147.  See  also  Congress  and 
Speaker. 

Howard,  Burt  E.,  The  German  Empire, 
601,  603. 

Hundred  courts,  in  English  judiciary, 
523;   relation  to  church,  516. 

Hunt,  William,  History  of  the  English 
Church,  522. 

Idaho,  on  judicial  circuit,  245. 

Illinois,  gerrsTTiander  in,  150;  senator 
from,  expelled,  120;  on  judicial  circuit, 
244 ;   State  senate  of,  348. 

Immigration  cases,  in  federal  courts,  265. 

Impeachment,  in  Argentina,  67S,  682 ; 
in  England,  423 ;  not  used  in  Switzer- 
land, 642  ;  in  United  States,  55,  62,  63, 
92,  234,  23s;  methods,  26,  29,  118, 
140,  141,  175;  in  the  several  States, 
347,  367,  368. 

Imperial  idea.  See  German  Empire  and 
Holy  Roman  Empire. 

Implied  powers  and  the  United  States 
Constitution,  6,  10,  269,  298-301. 

Imports  and  Finance,  Swiss  department 
of,  623.     See  also  Customs. 

Income  taxation,  loi ;  federal  law  de- 
clared unconstitutional,  243,  278,  288; 
in  Wisconsin,  342. 

India,  Victoria  made  Empress  of,  484 ; 
imperial  relations,  436,  437,  453 ; 
appeals  from,  405 ;  compared  with 
Ireland,  538;    future  self-government, 

549.  697 • 

Indian  .^flairs,  in  United  States,  com- 
missioner for,  107. 

Indiana,  gerrymander  in,  150;  on  judi- 
cial circuit,  244. 

Indians,  as  national  wards,  118;  exempt 
from  restriction,  309. 

Industrial  control,  should  be  uniform, 
359- 


Industrial  development,  since  the  Civil 
War,  109, 111,312;  causes  complexity, 
373- 

Inherent  powers,  of  Argentine  provinces, 
673;  of  Swiss  cantons,  618;  of  States 
in  United  States,  251,  262,  307,  308, 
342,  379.     See  also  Reserved  powers. 

Initiative,  in  Switzerland,  619,  626,  632, 
643 ;  in  United  States,  278,  354,  355, 
358. 

Injunctions,  in  federal  courts,  279;  im- 
proper use  of,  383. 

Insurance,  in  Australia,  685 ;  in  Ger- 
many, 605;  Switzerland,  618;  by 
State  authority,  342,  358;  supervision 
of  373- 

Intendants,  in  Chile,  669. 

Interior  department,  in  Argentina,  676 ; 
in  Chile,  665  ;  in  French  cabinet,  566- 
569,  571;  in  Switzerland,  623;  in 
United  States,  estabhshed,  97  ;  duties, 
105-108 ;  investigated,  92  ;  secretary's 
succession  to  presidency,  48. 

Internal  improvements,  in  Argentina, 
684;  in  United  States,  103. 

Internal  navigation,  in  federal  jurisdic- 
tion, 253. 

Internal  revenue,  collections  of,  loi ; 
cases  in  federal  courts,  265. 

International  law,  importance  of,  98 ; 
offenses  against,  regulated  by  Congress, 
117  ;  relation  to  small  states,  654,  655. 

Interpellation,  in  French  legislature,  576, 

577- 

Interstate  and  Foreign  Commerce  Com- 
mittee of  House  of  Representatives, 
159- 

Interstate  commerce,  under  federal  con- 
trol, 7,  8;  regulated  by  Congress,  105, 
117,  118,  299,  300;  cases  in  federal 
courts,  265  ;  conflict  of  jurisdiction  on, 
9;  aid  in  centralization,  11. 

Interstate  Commerce  Act  of  1887,  109. 

Interstate  Commerce  Commission,  or- 
ganized, 109,  no;  duties,  no,  in, 
300;  importance  of,  375. 

Interstate  Commerce  Committee,  in 
Senate,  133. 

Intervention,  in  provincial  affairs,  in 
Argentina,  674-676. 

Investigations,  by  Congress,  92. 

Iowa,  United  States  District  Courts  in, 
246;  on  judicial  circuit,  244. 

Ireland,  English  rule  in,  535-539;  execu- 
tive,  537 ;    chief  secretary   for,   435 ; 


740 


INDEX 


lord  lieutenant,  436 ;  relation  to  cabi- 
net, 4j6;  parliamentar>'  representa- 
tion, 448-450,  534.  537;  representa- 
tive peers,  460,  537 ;  obstruction 
tactics,  457;  land  system,  536-538; 
judiciary,  524,  537,  582;  Home  Rule. 
469,  472,  508,  539;  relation  to  royal 
Jamily,  484;  church  history,  521,  522, 
536;  government  compared  with 
India,  538. 

Irish  Nationalists,  in  Parliament,  472. 

Irrigation,  government  aid  to,  in  Argen- 
tina, 684;  in  United  States,  106,  107. 

Italians,  in  Switzerland,  614. 

Italy,  in  Charlemagne's  empire,  592 ; 
independent  states  in,  593 ;  Roman 
law,  593 ;  a  European  power,  649 ; 
parties  in,  491 ;  compared  with  South 
America,  658. 

Jackson,  Andrew,  as  president,  32, 
opposes  nullification,  10;  vetoes,  74- 
76. 

Jacques,  Leon,  Les  Partis  Politiques  sous 
la  III'  Ripublique,  573,  580. 

James  I,  accession,  534,  536 ;  illegal  acts, 

425- 

James  II,  despotism  of,  425,  426,  524; 
excluded  from  throne,  494,  519,  522; 
attempts  to  regain  Crown,  536. 

Japanese,  refused  United  States  citizen- 
ship, 325. 

Jefferson,  Thomas,  in  Washington's 
cabinet,  82,  85 ;  a  party  leader,  10 
180,  181,  186,  187;  chosen  president, 
40,  286,  287 ;  judiciary  under,  235 ; 
uses  no  vetoes,  76;  cited,  301,  553; 
Manual  of  Parliamentary  Practice,  164. 

John,  king  of  EnKlan<l,  552;  arbitrary 
acts,  416;    signs  Magna  Charta,  423, 

492.517- 

Johnson,  Andrew,  contest  with  Congress, 
62,  225. 

Joint  Conferences,  in  United  States 
Congress,  168,  i6g. 

Jones,  Chester  Lloyd,  Election  in  the 
United  States,  189,  195,  201,  218;  Law 
Making  in  the  United  Stales,  342,  344, 
345.  360. 

Judges,  appointefl  by  executive,  29,  55, 
SQ,  234,  241,  367,  383,  384;  elected, 
383  ;  life  tenure  of,  62  ;  participate  in 
impeachment  trials,  368;  recall  of, 
310,  358;   terms,  233-235.  24'- 

Judicature  Act  of  1873  in  England,  531. 


Judicial  Code  of  191 2,  236,  240,  244,  296. 

Jltjiciary: 

In  Argentina,  679,  681-683. 
In  England,  differentiated,  523-525  ; 
independence,  446,  524,  525;  relation 
to  Crown,  489;  to  Parliament,  406; 
divisions  of,  527-532;  compared  with 
.\merican,  398,  399. 

In  France,  554,  559,  560,  571,  577, 
589-591- 

In  South  Africa,  548. 
In  Switzerland,  619,  621,  625,  628- 
631,  634. 

In  United  States,  in  colonial  times, 
16;  federal,  104,  231-240,  250-265, 
588,  589;  relation  to  Congress,  117, 
266-279,  29s;  sphere  of  action,  25, 
26,  28,  29,  323,  331,  332;  peculiar 
functions,  275,  276,  380,  384;  in  the 
States,  379-391- 

Judiciary  Act  of  1789,  in  United  States, 
231,  236,  24s,  296. 

Judiciary  Committee  of  House  of  Repre- 
sentatives, 158,  159;   of  Senate,  133. 

Jurisdiction  of  Argentina  federal  courts, 
682 ;  of  Swiss  courts,  628 ;  of  United 
States  federal  courts,  232,  234,  236, 
247,  248,  250-265 ;  of  State  courts, 
385,  386;  transfer  to  federal  courts, 
385,  386. 

Jury  system,  development  of,  415 ;  right 
of  trial  by,  8,  231,  285  ;  functions,  247, 
388,389;   criticized,  390. 

Justice,  French  department  of,  566,  567  ; 
United  States  department,  97,  103- 
105,  110,  112;  relation  to  federal 
courts,  247.  Sec  also  Attorney  Gen- 
eral. 

Justice  and  Police,  Swiss  department  of, 
623. 

Justice  and  Public  Instruction  depart- 
ment, in  Argentina,  681  ;  in  Chile.  665. 

Justices  of  the  Peace,  in  England,  527- 
529;  in  Switzerland,  628;  in  United 
States,  381. 

Justinian,  Roman  emperor,  592;  codifies 
law,  584,  580. 

Juvenile  courts,  duties,  382 ;  in  District 
of  Columbia,  249. 

Kaiser,  origin  of  term,  593,  594,  602; 
ofTice,  604;  military  powers,  605,  606; 
other  powers,  482,  607-609.  Sec  also 
William  I  and  II  of  Cicrmany. 

Kansas,  on  juilii  iai  circuit,  244. 


INDEX 


741 


Kebbel,  Thomas  E.,  History  of  Toryism, 

497- 

Keith,  Arthur  B.,  Responsible  Govern- 
ment in  the  Dominions,  549. 

Kemble,  John  M.,  Saxons  in  England, 
420. 

Kent,  James,  cited,  271. 

Kentucky,  on  judicial  circuit,  244. 

Kilkenny,  smallest  Enghsh  constituency, 

449- 
King.     See  Crown. 
King,  Joseph,  and  Rafferty,  F.  W.,  Our 

Electoral  System,  449. 
King's  Bench,  court  of,  origin,  523,  524; 

functions,  530-532. 
Knox  V.  Lee,  cited,  275. 
Knox,  Philander  C,  secretary  of  state, 

124. 
Kruger,  Paul,  Kaiser's  telegram  to,  482. 

Labor  Committee,  in  House  of  Repre- 
sentatives, 159. 

Labor  department,  in  France,  567 ;  in 
United  States,  48,  97,  108,  109. 

Labor  disturbances,  relation  to  injunc- 
tions, 279. 

Labor  legislation,  in  Argentina,  684; 
in  Switzerland,  618,  621;  in  United 
States,  575. 

Labor  party,  in  England,  472,  515.  See 
also  Trades  unionism. 

LaFollette,  Robert  M.,  Wisconsin  sen- 
ator, 291. 

Landlordism,  in  England,  483 ;  in  Ire- 
land, 536. 

Land  Ofhce,  bureaus,  106;    regulations, 

57- 
Lands,   public  in  United  States,   under 

federal  control,  118,  251,  259,  265,  309, 

310;    laws  investigated,  97.     See  also 

Public  domain. 
Landsgemeinde,     rn     Switzerland,     615, 

623,  626. 
Land  system,  and  free  government,  660, 

661;  in  France,  554;   in  Ireland,  536- 

538;   in  New  Zealand,  545. 
Language,  influence  on  history,  551. 
Lamed,  Josephus  N.,  History  for  Ready 

Reference,  599,  600. 
Latin  America,  cited,  638. 
La  Union,  Chilean  town,  670. 
•  Laurier,  Sir  Wilfred,  Canadian  premier, 

694. 
Law,  Bonar,  position  on  tariff  question, 

469. 


Law,  respect  for,  104 ;  enforcement,  56, 
57.  337.  3i>5  <  private  under  state  con- 
trol, 7.  See  also  Common  Law,  Legis- 
lation, and  Roman  Law. 

Learned,  Henry  Barrett,  The  President's 
Cabinet,  81,  95. 

Lecky,  W.  E.  H.,  England  in  the  Eight- 
eenth Century,  497. 

Lee,  Sir  Sidney,  Queen  Victoria,  490. 

Legal  profession,  cabinet  members  from, 
89. 

Legislation,  movement  for  direct,  355. 

Legislative  power,  in  Switzerland,  626- 
628;  in  United  States,  25,  26,  33; 
relation  to  executive,  27,  70-79.  See 
also  the  several  legislative  bodies. 

Legislative  reference  libraries,  353. 

Legislatures,  in  France,  565,  566,  570, 
572;  in  United  States,  colonial  era, 
is;  relation  to  judiciary,  266-279; 
in  the  several  States,  129,  131,  132, 
340-360;  influenced  by  governors, 
368-371.  See  also  the  several  legis- 
lative bodies. 

Libel  action,  cannot  be  brought  against 
Congressmen,  123. 

Liberal  party : 

In  Canada,  541. 

In  England,  443,  486,  496 ;  organiza- 
tion, 507-510,  514;  relation  to  House 
of  Lords,  460-461,  500,  501 ;  to  Home 
Rule,  469,  472 ;  to  Women's  Suffrage, 
470;  to  Labor  party,  472;  to  educa- 
tion, 440,  441. 

In  Switzerland,  636,  637. 

Liberal  Unionist  party,  unites  with  Con- 
servatives, 472. 

Liberal  Yearbook,  cited,  457-459.  497. 
509- 

Liberty,  essentials  of,  24,  29 ;  restrained 
by  police  power,  331. 

License  Cases,  cited,  330. 

Lieutenant    Governor,    functions,    349, 

371. 

Life  peers.    See  House  of  Lords. 

Life-saving  service,  in  Treasury  depart- 
ment, 102. 

Limited  powers,  of  federal  government, 
251,  270,  307;  by  constitutions,  342- 
344,352;  of  Congress,  116,  117. 

Lincoln,     Abraham,     nomination,     210 
election,    45 ;     chooses    cabinet,    86 
during  the  war,  32,  57,  58;  vetoes,  76 
on  Dred  Scott  decision,  279 ;  reverence 
for,  484;   Gettysburg  speech,  691. 


742 


INDEX 


Liquor  traffic,  regulated  in  Switzerland, 
621 ;   in  United  States,  loi,  337. 

Lloyd,  Henry  D.,  A  Sovereign  People,  626. 

Lloyd-George,  David,  English  states- 
man, 443. 

Loans,  in  care  of  Congress,  116.  See  also 
Finance. 

Local  Government,  teaches    self-gov- 
ernment, 658,  686 ;   transmits  govern- 
mental forms,  340,  341,  412. 
In  Chile,  669-671. 
In  England,  412-420,  436,  526,  529; 
compared  with  L'nited  States,  437,  438. 
In  France,  554,  568-571. 
In  United  States,  4,  7,  313,  333-339, 
6go ;    dual  functions,  336 ;    compared 
with  England,  437,  438. 

Local  Government  Board,  in  England, 
437,  438,  529- 

Locke,  John,  political  philosopher,  20. 

Log-rolling,  in  nominating  conventions, 
202  ;   in  State  legislatures,  383. 

Lollards,  rebellion  of,  493. 

London,  representation  in  Parliament, 
449;  Bishop  of,  460;  police  force, 
438 ;   Court  of  Appeals  sits  in,  531. 

Ix)ng  Parliament  described,  424,  425,  524. 

Lord  Chancellor,  of  England,  437,  459, 
489;  position,  446;  ciualifications, 
443;  functions,  435,  461,  520,  525, 
526,  530. 

Lorimer,  William,  expelled  from  Con- 
gress, 120. 

Louis  XIV,  aids  Stuart  monarchs,  426. 

Louis  Napoleon.    See  Napoleon  III. 

Louisiana,  State  constitutions,  344; 
legislature,  349;  in  election  of  1876, 
47;  judges  from,  61  ;  Roman  law  in, 
386,  582  ;  on  judicial  circuit,  244. 

Ix)w,  A.  Maurice,  The  Usurped  Powers 
of  the  Senate,  139. 

Lowell,  A.  Lawrence,  Governments  and 
Parlies  of  Europe,  557,  559,  561,  567, 
569,  S74.  S7S,  577,  602,  613,  617,  620; 
Public  Opinion  and  Popular  Govern- 
ment, 162;  The  Government  of  Ennland, 
136,  402,  413,  414,  420,  436,  438,  440, 
441,  443.  446,  449,  4SI,  453,  461,  473. 
477.  4S0.  487.  400,  497,  512,  520,  522, 
5.50.  532,  S3,').  530- 

Loyalists,  as  a  political  party,  179. 

Lyons,  local  government,  569. 

McCall,  Samuel,  The  Business  of  Con- 
gress, 154,  176. 


McCarthy,   Charles  R.,   The  Wisconsin 

Idea,  360,  37S. 
McClain,   Emlin,  Constitutional  Law  in 

the  United  States,  123,  253,  280,  315, 

318,  322,  324,  328. 
McConachie,   Lauros   G.,   Congressional 

Committees,  176. 
McCracken,  W.  D.,  The  Rise  of  the  Swiss 

Republic,   620;     Teutonic  Switzerland, 

623. 
Machine    politics,    in    nominating    con- 
ventions, 202. 
McCuUoch  V.  Maryland,  cited,  6,  10,  298, 

317- 
McKinley,  William,  letter  of  acceptance, 

216;  vetoes,  76. 
MacMahon  M.  E.  P.  M.,   president  of 

France,  556,  557,  562  ;  resigns,  558,  563. 
Macy,    Jesse,   Party    Organization    and 

Party  Machinery,  172,  189,  218,  230; 

Political  Parties  in  the  United  States, 

180,  185,  189;    The  English  Constitu- 
tion, 22,  29,  411,  435. 
Madison,  James,  framer  of  Constitution, 

282,    283,    284;     uses    term    cabinet, 

82 ;    employs  veto  power,  76 ;    cited, 

23,  24,  178.     See  also  Federalist. 
Magna  Charta,  in  English  constitutional 

history,  399,  409,  415,  416,  421,  423, 

492,  517,  585,  587,  645;  United  States 

heritage  in,  19. 
Maine,  governor's  council  in,  384;    on 

judicial  circuit,  244. 
Maitland,  Frederick  William,  Justice  and 

Police,  532. 
Mann  white  slave  act,  300. 
Marbury  v.  Madison,  cited,  269,  270,  272, 

297. 
Marine  department,  in  Argentina,  681  ; 

in  French  cabinet.     Sec  also  Navy. 
Maritime  jurisdiction,  distinguished  from 

admiralty,  254. 
Marriage,  need  of  uniform  laws  of,  358, 

359- 
Marriott,    J.    A.    R.,    English    Political 

Institutions,    532;     Second   Chambers, 

581. 
Marshall,  Chief  Justice  John,  decisions, 

10,  12,  26(),  270;   cited,  271,  272. 
Marshals,    of    United     States    Courts, 

244,  24s,  247. 
Martial  law,  in  riots,  365. 
.Mary  II,  accession,  519. 
Maryland,    taxes   bank   notes,    10;    on 

judicial  circuit,  244. 


INDEX 


743 


Massachusetts,  colonial  legislature,  15 ; 
executive  in,  363,  384;  on  judicial 
circuit,  244;  gerrymander  in,  150. 

Master  of  the  Rolls,  531. 

Matilda,  queen  of  England,  517. 

May,  Thomas  E.,  Constitutional  History 
of  England,  431,  434. 

Mayors,  of  French  communes,  566,  570; 
in  Swiss  communes,  622,  624,  625. 

Medley,  Dudley  J.,  English  Constitu- 
tional History,  411,  434,  477,  532. 

Merchant  Marine  and  Fisheries  Com- 
mittee, of  House  of  Representatives, 

ISO- 

Merriam,  C.  Edward,  American  Politi- 
cal Theories,  30,  220;  Primary  Elec- 
tions, 230. 

Mexico,  federal  government  in,  66g. 

Meyer,  Ernest  C,  Nominating  Systems, 
189,  201,  202,  204. 

Michigan,  on  judicial  circuit,  244. 

Mileage,  allowed  to  Congressmen,  123, 
127. 

MiUtary  Affairs,  Swiss  department  of, 
623. 

Military  Affairs  Committee,  in  House  of 
Representatives,  159;  in  Senate,  133. 

Military  system,  in  Germany,  598,  599, 
60s,  606 ;  in  England  and  United 
States,  437.  See  also  Army,  and  War 
department. 

Militia,  called  out  by  governors,  365 ; 
officers,  55,  124;    administration,  102. 

Minimum  wage  laws,  358,  359;  com- 
mission for,  374. 

Ministerial  responsibility.  See  Cabinet, 
and  Responsibility. 

Minnesota,  State  senate,  348;  on  judi- 
cial circuit,  244. 

Minor  v.  Happersett,  cited,  321. 

Mississippi  legislature,  349;  guberna- 
torial election,  362  ;  on  judicial  circuit, 
244. 

Missouri,  restriction  imposed  on,  309; 
county  courts  in,  381 ;  on  judicial 
circuit,  244. 

Model  Parliament,  summoned,  404, 
412. 

Monarchy,  types  of,  3,  478,  479 ;  United 
States  dreads,  5,  34,  35 ;  democratic 
monarchy  a  new  type,  478,  479,  482, 
483 ;  compared  with  presidency,  488. 
See  also  Crown. 

Money  bills.     Sec  Appropriations. 

Monmouth,  Uuke  of,  succession,  494. 


Monopolies,  in  Swiss  government,  618, 
621.     See  also  Corporations.  , 

Monroe  Doctrine,  691. 

Montana,  on  judicial  circuit,  245. 

Montesquieu,  Charles  de  Secondat  baron 
de  la,  political  philosopher,  20,  26 ; 
influence  of,  553 ;    Spirit  of  the  Laws, 

25- 

Montfort,  Simon  de,  place  in  parliamen- 
tary history,  404,  416. 

Moon,  Reuben  O.,  The  Reorganization  of 
the  Federal  System,  238. 

Moore,  William  H.,  New  Australian 
Commonwealth,  549. 

Morley,  John,  Life  of  Gladstone,  480,  539. 

Mormons,  in  Congress,  120,  121. 

Morris,  Governeur,  in  Constitutional 
Convention,  267. 

Moses,  Bernard,  The  Federal  Government 
of  Switzerland,  617,  620. 

Mothers'  pensions,  advocated,  358. 

Municipal  Councils  Act  (1835),  529. 

Municipal  courts,  functions,  382. 

Municipalities,  in  Chile,  670;  in  Eng- 
land, 420,  496,  529;  in  United  States, 
229,  334-336;  public  ownership  in, 
358 ;  in  Europe  in  general,  334,  335. 

Munro,  William  B.,  The  Government  of 
American  Cities,  339;  The  Govern- 
ment of  European  Cities,  550,  571. 

Mutiny  Act,  in  English  Parliament,  426. 

Napoleon  I,  assumes  imperial  power, 
595 ;  as  French  emperor,  5S3-S5S ; 
institutional  measures,  565,  568. 

Napoleon  IH,  in  France,  556 ;  conquered, 

399- 
National    Assembly    in    France,    elects 

president,  557,  562  ;   amends  constitu- 
tion, 559. 
National   Committee,   in  United  States 

party    politics,     191-197,     225,     226; 

appointment,     igg ;     authority,     196, 

197,  207,  212;   composition,  206,  207; 

officials,  208,  209,  213;    duties,  207- 

210,  212-216;   permanency,  205,  211, 

216-218. 
National  Convention.     See  Nominating 

Convention. 
National   Council,   in   Switzerland,   621, 

625,  641,  644;  described,  627,  628. 
National  Liberal  Federation,  in  England, 

S07-510,  513. 
National   Liberal   party,    in    Germany, 

6io-6i2. 


744 


INDEX 


National  Republican  party,  in  United 
States,  nominating  convention  of, 
igi. 

Nationalism,  in  United  States,  in- 
creased power  of,  310-314.  Sec  also 
Centralization. 

Nationalists  in  England.  Sec  Irish 
Nationalists. 

Naturalization,  under  federal  contiol, 
117,  324,  325. 

Naval  .\ffairs  Committee,  in  House  of 
Representatives,  159. 

Navy,  in  England,  represented  in  cabinet, 
436;  in  United  States,  under  federal 
control,  7,  55-57,  117-  See  also 
Marine  department. 

Navy  department,  in  United  States, 
established,  97 ;  duties,  102,  103 ; 
secretary's  succession  to  presidency, 
48. 

Nebraska,  restriction  imposed  on,  309 ; 
impeachment  trials,  368;  on  judicial 
circuit,  244. 

Negroes,  protection  for,  319,  328;  ac- 
quire citizenship,  323,  325.  Sec  also 
Slavery. 

Nevada,  population,  284;  restriction 
imposed  on,  309;  on  judicial  circuit, 
245- 

Newcastle  Program,  in  English  politics, 
509- 

New  England  Confederation  of  1643, 
690 ;  constitutions  of  States,  345 ; 
judges  in,  383.  See  also  the  several 
States. 

New  Hampshire,  on  judicial  circuit,  244 ; 
judges  in,  384. 

New  Jersey,  State  senate,  348;  guber- 
natorial term,  363 ;  on  judicial  cir- 
cuit, 244. 

New  Mexico,  State  constitution,  345; 
gubernatorial  term,  363. 

New  York  City,  customs  ofTicers,  101. 

New  York  County,  party  organization, 
223. 

New  York  State,  population,  284;  Slate 
senate,  348 ;  chief  justice,  384 ;  courts 
in,  244,  24s;  codifies  law,  388;  im- 
peachment in,  367,  368;  importance 
in  presidential  campaign,  46;  repre- 
sented in  cabinet,  87;  congressmen, 
124;   local  rights,  696. 

New  Zealand,  relation  to  Crown,  485; 
Constitution,  544,  545  ;  governmental 
institutions,  544,  545. 


Nobility,    titles    forbidden,    in    United 

States,  8. 
.\oble  State  Bank  v.  Haskell,  cited,  332. 
Nominating  agencies,  187-189;   systems 

changing,  49,  50,  357. 
Nominating     Convention,     in     United 

States,  43,  49,  505 ;    described,   190- 

203 ;    temporary,   205 ;    arrangements 

for,    209,    210;     in    States,    221;     in 

counties,  223. 
Norman  Conquest  of  England,  404,  412, 

516;  dynasty,  479,  492,  551,  552. 
North,       Frederick,       Lord,       advises 

George  IH,  431. 
North  American  Act  (1868),  540,  545. 
North  Carolina,  and  veto  power,  370; 

governor's  council  in,  384 ;  on  judicial 

circuit,  244. 
North  Dakota,  on  judicial  circuit,  245. 
Norway,   a  democratic  monarchy,   479, 

649 ;    merchant  marine,  650 ;    church 

and  state  in,  496;  democracy  of,  651, 

652., 
Notification,  of  presidential  nomination, 

199,  200. 
Nullification,  in  South  Carolina. 
Nullifying    power.    See   Judiciary    and 

Supreme  Court. 

Oaths,  importance  of,  271. 

Office  holding.  See  Appointments,  Civil 
service,  and  Removals. 

Ogg,  F.  A.,  Govcrnmcnls  of  Europe,  402, 
413,  420,  434,  436,  453.  458,  477.  490, 
51S.  532,  553,  561.  569,  601,  613,  615, 
620,  655. 

Ohio,  restrictions  on,  309 ;  on  judicial 
circuit,  244. 

Ohio  and  Mississippi  R.  R.  Company  v. 
Wheeler,  cited,  259. 

Oil  carriers,  regulations  for,  110. 

Oklahoma,  State  constitution,  345 ; 
gubernatorial  term,  3O3 ;  on  judicial 
circuit,  245. 

Oppenheim,  L.,  Iiilcnialional  Law,  655. 

Opposition,  party  in  I'^ngland,  458,  467, 
468;  orgiinization,  471;  in  Parlia- 
ment, 400,  401,  408,  -^73,  474;  in 
United  States,  171-174. 

Orangemen,  in  Ireland,  522. 

Oratory,  in  nominating  conventions,  199. 

Ordainers,  in  reign  of  Edward  II,  423. 

(.)r(lers  in  council,  authority  of,  422., 

Ordinance  power  of  president,  56;  of 
cabinet  officers,  94,  95. 


INDEX 


745 


Oregon,  in  election  of  1876,  47 ;  recall  of 

officials,  368;  on  judicial  circuit,  245. 

Orleanists,    French    dynasty,    553,    555, 

558- 
Osorno,  Chilean  town,  670. 
Ostrogorski,     M.,     Democracy     and    the 

Organization  of  Political  Parlies,    189, 

201,  204,  218,  230,  515. 
Ottoman  Empire.     See  Turkish. 

Panama  Canal,  constructed,  103. 

Paper  duties  bill  (i860),  463. 

Parcels  post,  establishment  of,  108. 

Pardoning  power,  in  France,  565 ;  in 
United  States,  55,  63,  64;  applications 
for,  105 ;  in  the  several  States,  365, 
366 ;  board  for,  366. 

Paris,  Louis  PhiUppe  Albert  d'Orleans, 
count  of,  pretender  to  French  throne, 
558. 

Paris,  Charlemagne's  capital,  592  ;  local 
government  of,  569;  party  organiza- 
tion, 578. 

Parish,  use  of  term,  517. 

Parish  Councils  Act  (1894),  528. 

Parke,  Sir  James,  a  life  peer,  460. 

Parliament  : 

Origin  of  term,  405 ;  history  of, 
423-434,  552;  influence,  19;  suprem- 
acy, 405,  406 ;  relation  to  Crown,  488, 
489 ;  speech  from  the  throne,  451,  454, 
466,  472,  473,  489,  498;  relation  to 
Prime  Minister,  442,  443 ;  relation  to 
Cabinet,  439 ;  relation  to  EngHsh 
church,  520;  relation  to  judiciary,  266, 
525 ;  has  no  share  in  treaty-making, 
482;  controls  local  govenunent,  529; 
controls  taxation,  426 ;  money  bills, 
456;  bills  classified,  454-457  ;  govern- 
ment bills,  454-456,  467 ;  discussion, 
455-458 ;  closure,  457  ;  vote  of  censure, 
472,  473 ;  joint  committees,  454 ; 
length  of  session,  451 ;  privileges,  123  ; 
party  system  in,  495,  498-504 ;  whips, 
474-476,  499,  513;  relation  to  admin- 
istration, 526;  departmental  secre- 
taries, 439,  440.  See  also  Cabinet, 
House  of  Commons,  House  of  Lords. 

Parliament  Act  of  191 1,  452,  463,  464, 
501. 

Parliamentary  type  of  government.  See 
Cabinet. 

Pamell,  Charles,  parliamentary  leader, 
472. 

Parole  of  prisoners,  366. 


P.ARTY  Politics  : 
In  Canada,  541. 

In  England,  408,  412,  466,  468-470, 
494.  495,  502,  503,  506,  507  ;  defined, 
491;  history  of,  491-496;  relation  to 
Crown,  480-482,  487,  488 ;  to  Cabinet, 
400,  401,  439;  to  religious  bodies,  418, 
419,  493,  494,  500;  machinery  for, 
467-477,  498-504;  S11-515;  whips, 
512-514;  districts,  450;  leaders,  442, 
443.  See  also  the  several  parties, 
Conservative,  Liberal,  Whig,  etc. 
In  France,  572-579. 
In  Germany,  610-613. 
In  Switzerland,  635,  636. 
In  United  States,  29,  30,  303,  304 ; 
relation  to  executive,  32,  35,  38,  40, 
42,  43,  45,  46,  48,  59,  70,  78,  84,  86, 
87 ;  and  the  appointing  power,  58, 
60-62;  relation  to  Senate,  129,  132, 
133 ;  to  House  of  Representatives, 
157,  171-174;  to  the  judiciary,  277- 
279,  383;  in  the  States,  219-229,  350, 
351,  357,  369-371 ;  machinery  for,- 
177-190,  201,  202,  205-218;  control 
of,  229,  230;  in  contested  elections, 
120;  caucus,  134-136;  system  criti- 
cized, 229,  230;  dynamic  conditions, 
281,  302. 

Passports,  from  state  department,  98. 

Patent  office,  in  Interior  department,  57, 
107. 

Patents,  regulated  by  Congress,  117; 
commissioner  of,  249 ;  cases  in  federal 
courts,  261,  264,  265. 

Patriotism,  in  federal  governments,  693, 
694.     See  also  the  several  nations. 

Patronage,  in  England,  440;  in  United 
States,  61,  217,  218,  225 ;  in  post 
offices,  108;  in  States,  219,  369.  See 
also  Appointments,  and  Civil  service. 

Paul  V.  Virginia,  cited,  376. 

Pennington,  A.  Stuart,  The  Argentine 
Republic,  675,  688. 

Pennsylvania,  colonial  legislature,  15; 
senator  from,  124;  on  judicial  circuit, 
244  ;  judges  in,  384. 

Pension  Office,  administration  of,  57, 
107. 

Personal  rights  in  State  courts,  379. 

Petition  of  Right,  source  of  English 
constitution,  409. 

Petty  sessions,  courts  of,  527,  528. 

Philadelphia,  customs  officers,  loi. 

Phillip  Augustus,  king  of  France,  552. 


746 


INDEX 


Philippine  Islands,  engineering  in,  103  ; 
represented  in  nominating  convention, 
192  ;  appeals  from,  263 ;  self-govern- 
ment for,  697. 

Pierce,  Franklin,  vetoes,  76. 

Pigeonholing,  of  legislative  proposals, 
160. 

Pike,  Luke  Owen,  Coustitulional  History 
of  lite  House  of  Lords,  458. 

Pindcney,  Charles,  in  Constitutional 
Convention,  81. 

Pipe  lines,  regulations  for,  no. 

Piracy,  crime  against  federal  laws,  117. 

Pitt,  William,  in  the  House  of  Commons, 
430,  433- 

Pitt,  William,  the  younger,  as  a  party 
leader,  495,  496 ;  ministrj'  of,  431,  433. 

Plantagenets,  dynasty  of,  479,  552. 

Platform,  adopted  by  nominating  con- 
vention, 191,  197,  198,  205;  manipu- 
lations in  framing,  202 ;  relation  to 
Congressional  Committee,  228. 

Po  River,  headwaters,  614. 

'Pocket  veto,  discussed,  77. 

Poincarc,  Raymond,  French  president, 
559 ;  How  Prance  is  Governed,  559,  561, 
564.  560,  S7I.  590. 

Police  power,  in  United  States  Consti- 
tution, 329-333. 

Police  system,  in  England,  438. 

I'olitical  philosophy,  influence  of,  20,  553. 

Political  Science  Quarterly,  cited,  220,  230, 
268,  328. 

Polk,  James  K.,  responsibility  for  Mexi- 
can War,  65  ;  vetoes,  76. 

Polygamy,  abolition  of,  309.  See  also 
Mormons. 

Pomeroy,  John  N.,  Constitutional  Law, 
67. 

Pondra  and  Pierre,  Traiti  pratique  de 
droit  parliamenlairc,  581. 

Poole,  Reginald  L.,  Exchequer  in  Twelfth 
Century,  532. 

Poor  Law  Act  (1834),  528. 

P«|)c,  cTowns  Charlemagne.  592 ;  rela- 
tion to  Knglish  church,  517. 

I'opular  will,  source  of  free  government, 
3,  23,  24;  in  United  States,  12;  rela- 
tion to  presidency,  49,  50,  70,  76,  78, 
88,  203  ;  to  State  legislatures,  343,  351. 
352.  3S4.  357 ;  to  .State  governors,  362, 
^(>^.  370.     See  also  Public  opinion. 

Population,  in  United  States,  representa- 
tion based  on,  128,  130,  146,  149; 
growth  of,  I.} 7. 


Porter,  Robert  P.,   The  Ten  Republics 

688. 
Porto  Rico,  in  nominating  convention, 

192  ;   appeals  from,  263. 
Portugal,   a  minor  state,   649 ;    colonial 

empire,  650 ;   becomes  a  republic,  650. 
Postal    system,    in    Germany,    606;     in 

United  States,  7,  117  ;  laws  for,  56,  265. 
Postmaster-General,  in  England,  436;  in 

United  States,  48,  97. 
Post  OfSce  and  Post  Roads  Committee, 

in  House  of  Representatives,  159. 
Post  Office  department,  in  United  States, 

95,  97,  108. 
Posts  and  Railways,  Swiss  department, 

623. 
Praetor,    Roman     administrative    office, 

584. 
Prayer  book  of  1549,  520;  of  1661,  520. 
Prefects,  in  French  administration,  566, 

568-571. 
Prerogative,  theory  of  royal,  422,  423 ; 

defeated,  432. 
Presbyterians,  settled  in  Ireland,   536; 

in  Scotland,  521. 
President  : 

In  Argentina,  675,  676,  678-682 ; 
powers,  683. 

In  Chile,  664-666,  668-670. 

In  France,  556,  557,  563  ;  term,  562 ; 
powers,  537,  558,  563-565.  570;  ordi- 
nance power,  566. 

In  Switzerland,  624,  625,  640; 
salary,  634. 

In  United  States,  prototype,  15; 
methods  of  choosing,  14 ;  nomination 
methods,  190,  194;  election,  38-53, 
286,  304,  305;  eligibility,  50;  term, 
SO,  51 ;  salary,  52 ;  national  executive, 
26,  99,  346;  functions  and  powers, 
31-37.  55-64.  102;  veto  power,  20, 
7.3-77.  0°,  169,  170;  guides  foreign 
relations,  64-69;  relations  to  Cabinet, 
82-84,  86,  88,  89,  98;  to  Senate,  88, 
138-i.to;  to  legislation,  70-79,  93.  94. 
118,  175;  messages,  71,  72,  306; 
assent  to  bills,  169;  proclamation,  99; 
relation  to  his  party,  27,  84,  85,  225; 
subject  to  impeachment,  141 ;  re- 
sp()nsii)iiity  of,  35,  36,  397  ;  relation  to 
popular  will,  49,  50.  7°.  76,  78,  88,  203  ; 
monarchical  tendencies,  401  ;  criticism 
of,  36,  37. 
I'rcsidcntial  type  of  government,  444- 
S05.  639,  663,  668,  687 ;  compared  with 


INDEX 


747 


Cabinet  type,  395-397,  444-446,  505, 
S06;  compared  with  monarchical 
type,  488. 

Presidential  Succession  Law,  48. 

Press,  influence  in  England,  437;  in 
France,  579;  in  United  States,  215; 
freedom  of,  285. 

Primaries,  in  Prussia,  597 ;  in  United 
States,  direct,  192-194,  203,  209,  2S8, 
289;  for  presidential  nomination,  49, 
50,  194,  203;  criticized,  203,  204;  in 
local  nominations,  221,  223. 

Prime  Minister,  in  England,  31,  512; 
creation  of  office,  429;  influence, 
442,  443,  466;  represents  party, 
480 ;  popular  choice  of,  466 ;  relation 
to  Cabinet,  395,  436,  437,  476;  to 
House  of  Commons,  499;  to  Church 
of  England,  520;  resignation,  436.  In 
France,  563,  564,  567,  575. 

Prince  consort,  prevents  war  with  United 
States,  482. 

Prisons,  supervision  of,  105. 

Private  law,  in  State  courts,  379. 

Privy  Council,  beginnings  of,  423,  424, 
524  ;  composition  and  functions,  435  ; 
judicial  functions,  16,  405,  520,  526, 
530 ;  veto  power,  692 ;  relation  to 
Cabinet,  424,  429;  decline  of  impor- 
tance, 427-429;  lord  president,  435. 

Privy  Seal,  lord,  position  of,  436. 

Probate  and  Divorce,  English  court  of, 
530-532. 

Progressive  party,  organized,  209 ;  posi- 
tion on  amendments,  290. 

Prohibitions,  established  by  Constitu- 
tion, 8. 

Proportional  Representation,  in  Switzer- 
land, 637  ;  on  United  States  senatorial 
committee,  134. 

Property  and  pohce  power,  331,  332; 
in  State  courts,  379. 

Protection  by  tariff,  299. 

Protestantism,  in  England,  518,  519, 
552;  in  Germany,  594.  See  also 
Church. 

Provinces  in  Argentina,  672-675,  677, 
679,  682,  683,  684;  in  Canada,  691, 
692. 

Provisions  of  Oxford,  and  English  consti- 
tution, 399,  423,  S18. 

Prussia,  rise  of,  594 ;  reform  in,  595 ; 
Napoleon's  relation  to,  595,  596 ; 
reaction  in,  596,  606;  constitution 
granted,  597  ;    king  becomes  German 


emperor,  695  ;   relation  to  Empire,  599, 

602-608,    695,    696;    opposed   by   its 

people,  601.     See  also  Germany. 
Public    debt,    administration    of,     112. 

Sec  also  Finance. 
Public  domain,  in  New  Zealand,   54s ; 

in  United  States,  106,  373.     See  also 

Lands. 
Public  health,  in  Chile,  670;   in  United 

States,  102,  374. 
Public  hearings,  at  committee  meetings, 

161,  162. 
Public    Instruction,    Superintendent    of, 

373.     See  also  Education. 
Public  Instruction  department,  in  French 

cabinet,  567. 
Public  opinion,  in  free  government,  659, 

664;    influence  of,  78,  122,  125,  162, 

370;     control    of,    30,    31.     See    also 

Popular  will. 
Public  Utilities,  control,  in  Switzerland, 

621;    in  United  States,  358;    supervi- 
sion of,  374;   state  ownership  of,  358. 
Public    Welfare,    promoted    by    police 

power,  330,  331,  332- 
Public  Works  department,  in  Argentina, 

681 ;   in  France,  567. 
Publicity,    value    of,    136;     in    election 

campaigns,   214,   215;    for  committee 

meetings,  161. 
Punic  War,  in  Roman  times,  585. 
Puritans,  rise  of,  494 ;   settle  in  Ireland, 

536;  a  political  party,  519. 

Quarantine,  imder  police  power,  329. 
Quarter  Sessions,  court  of,  417,  420,  527, 

528. 
Quesada,  Ernesto,  cited,  684-686. 

Racial  unity  and  free  governments,  659, 

660. 
Radical  Party: 

In  England.     See  Liberal  party. 
In  France,  573. 
In  Switzerland,  636,  637. 
See  also  Social  Democrats  and  So- 
cialists. 
Railways,   in   Argentina,    684,    685 ;    in 
United  States,  effect  on  centralization, 
n,    312;     on    interstate    commerce, 
299,  300;   federal  regulation,  109-111 ; 
strike  on,  57  ;  public  ownership  of,  635. 
Randolph,  John,  uses  term  cabinet,  82. 
Rates,    of    public    carriers,    regiJated, 


748 


INDEX 


Ray,  P.  Osman,  An  Introdiution  to 
Political  Parties  aitd  Practical  Politics, 
IQ5,  204,  216,  218,  230,  360. 

Rebates,  granted  by  railways,  log ;  pro- 
hibited, 110. 

Recall,  of  public  officers,  358,  368. 

Reclamation  Ser\-ice,  in  Interior  Depart- 
ment, 106. 

Recorders,  duties  of,  52g. 

Redlich,  Josef,  Procedure  of  the  House  of 
Commons,  458. 

Reed,  Thomas  B.,  speaker,  165,  166. 

Referendum,  proposed  in  England,  502 ; 
in  Switzerland,  619,  626,  632 ;  in 
United  States,  278,  354,  355,  358. 
See  also  Initiative. 

Reform  Act  of  1832,  479;  results  of,  432, 
433  ;  of  1834,  496. 

Reformation,  efifect  on  Germany,  594 ; 
does  not  entail  disestablishment,  518. 

Registration,  for  suffrage,  224;  falsified, 
229. 

Reichstag,  in  Germany,  696;  composi- 
tion, 603,  609;  F>owers,  609,  610,  612; 
parties  in,  610-613. 

Reinsch,  Paul  S.,  American  Legislatures 
and  Legislative  Methods,  144,  150,  176, 
357.  360:  "Parliamentary  Govern- 
ment in  Chile,"  667,  688;  Readings  on 
American  Federal  Government,  66,  80, 
IIS,  117,  118,  144,  176,  280;  On 
American  Stale  Governments,  360,  379, 
389.  391- 

Religious  bodies  in  England,  relation  to 
parties,  418,  419;  economic  relations, 
493;  relations  to  Constitution,  516- 
S2  2.    See  also  Church. 

Religious  freedom,  in  United  States,  8. 

Religious  revivals  in  England,  493. 

Removals,  in  Chile,  669;  in  United 
States,  62,  63,  83  ;  from  civil  service, 
113  ;  from  State  offices,  368.  See  also 
Civil  service  and  Spf)ils  system. 

Representation,  in  English  Parliament, 
448,  449;  in  United  States,  24;  theory 
of,  I2S,  126;  unit  of,  147;  in  State 
central  committee,  220. 

Republic,  term  defined,  23,  24;  in 
France,  3,  SS&-SS9.  562 ;  in  United 
States,  i-is,  23-30.  See  also  South 
America. 

Republican  parly,  elements,  86;  prin 
ciples,  185;  gerrymander,  150;  con- 
test with  Johnson,  225  ;  in  nominating 
conventions,  igs,  193, 195, 197;  special 


conventions,  208,  210,  211 ;  in  election 

campaign,  215,  218;   on  congressional 

committee,     226,     227;      insurgency 

among,  228. 
Reser\'ed  powers,  of  States,  in  United 

States,  6,  7,  333.    See  also  Inherent 

fxjwers. 
Responsibility  : 

In  presidential  system,   27,  35,  36, 

639,  640;    in  cabinet  system,  82,  83, 

89,  90. 
In  .\rgentina,  681. 
In  Chile,  665,  666. 
In  England,  422,  438,  439,  467. 
In  England  and  Switzerland,  com- 
pared, 639-641. 

In  France,  556,  558,  560,  562-564, 

566-573.  576. 

In  Prussia,  599,  600. 
In  Switzerland,  639-641. 
In  United  States,  35,  36,  397. 
Revenue.    See    Customs    and    Internal 

revenue. 
Revolution  of  1688,  in  England,  427,  478, 

552. 
Revolution  of  1830,  in  Switzerland,  615. 
Revolution  of  1848,  in  Europe,  596,  597, 

612;  in  Switzerland,  615. 
Revolution,     in     France.    See     French 

Revolution. 
Rhine  River,  headwaters,  614. 
Rhode   Island,   colonial   legislature,    15; 

merges  into  State,  16,  17;    legislative 

salaries,  349;    rights  of,  696;    judges 

in,  383,  384;  on  judicial  circuit,  244. 
Rhone  River,  head  waters,  614. 
Richard  II,  king  of  ICngland,  423. 
Richman,  Julia,  Citizenship  of  the  United 

States,  328. 
Riksdag,  in  Sweden,  652. 
Riots,  executive  action  against,  57,  365. 
Rivers    and     Harbors     Committee,     of 

House  of  Representatives,  159. 
Roads,    in    Swi.ss  government,   618;    in 

United  Stales,  358,  374. 
Robert,  Duke  of  Normandy,  415. 
Roberts,     Rrigham     H.,     representative 

from  Utah,  i  20. 
Roman  Empire,  comix)ncnt  parts,  551 ; 

growth,  583;    citizenshii)  in,  584,  585; 

i()rru|)tion  in,  649,  653. 
Roman  Law  : 

Origin  of,  583,  584 ;    growth,  592- 

594,  605,  649;  compared  with  Com- 
mon Law,  585-588. 


INDEX 


749 


Roman  Law  —  Continued. 

Influence  on  modern  governments, 
386,  582-591,  6S7 ;  countries  using, 
375- 

In  France,  551,  589-591.  595,  629, 
631. 
In  Switzerland,  625,  629. 
Romansch  language,  in  Switzerland,  614. 
Rome,  conquered  by  Charlemagne,  592, 

593  ;  while  a  small  state,  649. 
Romford,   largest  English  constituency, 

449- 
Roosevelt,     Theodore,    messages,      72  ; 
vetoes,    76;     cabinet,    87;    candidate 
for  third  term,  51. 
Roseberj',     Archibald,     Lord    Randolph 

Churchill,  515. 
Ross,  Edward  A.,  South  of  Panama,  659, 

660,  670,  684,  686,  688. 
Roundheads,  precursors  of  Whigs,  494. 
Rousseau,  Jean  Jacques,    political    phi- 
losopher, 20,  553. 
Rousseau,  Waldeck,  French  leader,  573. 
Royal  family,  in  England,  482,  486-488. 

See  also  Crown. 
Royalists,  in  France,  556-559,  563,  573, 

578.  580. 
Rules,  of  nominating  conventions,   197 ; 
of  House  of  Representatives,  122,  164- 
167;  of  State  legislatures,  350-352. 
Rules  Committee,   in  House  of  Repre- 
sentatives, 157,  159. 
Russia,  French  alliance  with,  565 ;    war 
with     Turkey,     654;      constitutional 
change  in,  478;    a  European  power, 
649. 

St.  Bartholomew,  massacre  of,  552. 

"Salary  grab,"  in  1873,  122. 

Salisbury,  Robert  A.  T.  Gascoyne  Cecil, 
marquis  of,  leader  of  Conserv'atives, 
436,  442. 

Santiago,  Chilian  capital,  670. 

Savoy,  causes  trouble  between  France 
and  Switzerland,  635. 

Saxons,  invade  England,  412,  551 ;  kings, 
479.     Sec  also  Anglo-Saxons. 

Saxony,  and  the  German  Empire,  602. 

Schleswig-Holstein,  taken  from  Den- 
mark, 598,  652. 

Schwytz,  Swiss  canton,  615. 

Scotland,  history',  494,  521,  522,  534; 
relations  to  English  government,  534, 
535.  539 ;  parliamentary  representa- 
tion, 448,  450,  534,  535;    peers,  534; 


secretary  for,  436;    bills,  455;    judi- 
ciary-, 534,  582;    appeals,  530;    lord 
advocate,  535. 
Scrutin  de  liste,  in  France,  557,  570. 
Secession,  right  of,  11. 
Second  chamber,  types  of,  501,  502.     See 

also  Bicameral  legislatures. 
Secretaries.     Sec     the     several     depart- 
ments. 
Sectional  interests,  in  U.  S.,  87,  129,  130. 
Seignobos,   Charles,  A   Political  History 
of  Contemporary  Europe,  478,  561,  580, 
596,  598,  613,  620,  655. 
Selby,  Viscount.     Sec  Gully. 
Senate : 

In  Argentina,  677-679,  682. 
In  French  Republic,  556-559,  570; 
described,  567,  577,  578;    ministerial 
access  to,  567  ;   judicial  function,  577, 
578. 

In  United  States,  prototype,  16; 
mi.xed  powers,  26;  coordinate  with 
president,  88,  137,  138;  confirms 
appointments,  59-62,  112,  305,  306; 
consents  to  removals,  63 ;  treaty- 
making  power,  34,  35,  60,  64,  66-69, 
138-140;  counts  electoral  votes,  40, 
45  ;  relation  to  Cabinet,  83  ;  composi- 
tion, 127,  284;  organization,  118,  130, 
132-134;  rules,  122;  freedom  of 
debate,  136,  137,  142,  166;  president, 
52;  original  function,  128,  130,  138; 
right  of  amendment,  168,  170;  im- 
portance, 141-144,  175,  311. 

In  States  of  United  States,  367,  368, 
371- 
Senatorial    courtesy,    in    appointments, 

139,  140;  described,  60,  61. 
Senators,  qualifications,  127;  election, 
119,  125,  131,  219,  284,  288,  289; 
former  election  method,  130,  131,  137; 
in  Cabinet,  87,  88 ;  on  committee,  227  ; 
influence  and  prestige,  137,  142,  143, 
311;  expulsion  of,  120,  121. 
Seniority  rule  in  Senate  committees,  133  ; 

in  House  committees,  154. 
Separation  of  powers,  theory,  56,  234, 
24s,  555- 
In  England.  523. 

In  United  States  Constitution,  24- 
26,  117,  396,  398,  399,  444-446,  477; 
why  established,  526,  527;  relation  to 
parties,  181-183;  exceptions  to,  127; 
criticism  of,  27,  626,  627 ;  in  State 
governments,  369. 


75° 


INDEX 


Serfs,  emancipation  of,  sgg. 

Sen-ia,  war  with  Bulgaria.  O54. 

Seward.  William  H.,  candidate  for  nomi- 
nation, 210. 

Shadow  Cabinet,  place  in  constitutional 
system,  432,  433;  changes  to  Cabinet, 

437- 

Shaftsbur>',  Anthony  Ashley  Cooper, 
earl  of.  404. 

Shaw,  Albert,  Municipal  Government  in 
Continental  Europe,  571. 

Shepherd,  William  R.,  Latin  America, 
683,  688. 

Sherman  law  of  1890,  300,  301. 

Ship  money,  illegal  tax,  424. 

Slaughter  House  Cases,  cited,  327. 

Slave  trade,  organizations  to  abolish,  506. 

Slavery,  controversy  over,  1 1 ;  compro- 
mise in  Constitution,  283 ;  abolition, 
37,  287,  319.  328. 

Slavs,  in  Austria,  594. 

Smith,  J.  Allen,  Tlie  Spirit  of  American 
Government,  30,  189,  280,  291,  293,  294. 

Smoot,  Reed,  Utah  Senator,  120,  211. 

.Smuggling,  defined,  loi. 

Social  control  of  property,  331,  332. 

Social  Democrats,  in  Germany,  600,  611, 
612;  in  Switzerland,  636,  637. 

Social  welfare  legislation,  in  Argentina, 
684 ;  in  United  States,  358,  359. 

Socialists,  in  Argentina,  683,  684;  in 
France,  573,  579.  637 ;  in  Germany, 
610-612,637;  in  Italy,  637;  in  Swit- 
zerland, 636-638. 

Sohm,  Rudolph,  Institutes  of  Roman  Law, 
583. 58s.  syi.  601. 

Solicitor-General,  duties,  104,  105. 

South  Africa,  forms  federal  union,  547, 
548,  692,  693 ;  relation  to  C!rown,  485. 
See  also  Australia  and  South  Africa ; 
Canada  and  South  Africa. 

South  America,  federal  experiments  in, 
656-658;  retardation,  658-6O1  ;  prog- 
ress, 66i,  662;  departure  from  con- 
stitutional forms,  682  ;  system  of  law, 
582.     See  also  Argentina,  and  ("hile. 

South  Carolina,  Slate  constitutions,  344  ; 
impeachment  offenses,  36S;  nullilHa- 
tion  in,  10;  judges,  383;  on  judicial 
circuit,  244;  in  election  of  1H76,  47. 

South  Dakota,  on  judicial  circuit,  245. 

Sovereignly,  in  federal  government,  3, 
6;  under  Constitution,  308,  309,  315; 
divided,  4,  330. 

Sfjain,  a  minor  state,  O49;   rcteul  devel- 


opments   in,    650;     South    American 
relations,  658,  661,  672. 
Speaker : 

In  House  of  Commons,  155,  451,  452. 

In  House  of  Representatives,   165, 

168,  169;  choice  of,  153,  154,  173; 
party  alliance,  171;  influence,  147, 
154-157.  174-  .504,  305- 

In  State  legislatures,  350. 

Spoils  system,  in  Switzerland,  634,  635; 
in  United  States,  113,  114.  See  also 
Civil  service. 

Squiarchy,  meaning  of  term,  528. 

"Stalwarts,"  control  congressional  com- 
mittee, 22S. 

Stan  wood,  Edward,  A  History  of  the 
Presidency,  54. 

Star  Chamber,  in  English  judiciarj-,  425, 

524- 
State  Central  Committee,  discussed,  220- 

222. 
State  department,  in  president's  cabinet, 

65,  89 ;  established,  97 ;  duties,  97-99, 

169,  255 ;  secretary  of,  48,  65 ;  in 
several  States,  372.  Sec  also  Foreign 
Affairs.  " 

State  of  siege,  in  Argentina,  675,  676, 
681. 

Staten  Island,  in  Argentina,  676. 

States : 

In  Australia,  692. 

In  United  States,  emerge  from  col- 
onies, 16;  independence  of,  J3  ;  rights, 
5-7,  9-11,  322;  inherent  powers,  251, 
262,  307,  308,  342,  379;  equal  sena- 
torial representation,  128,  129;  cen- 
tralization weakens  prestige,  11,  310- 
314,  318;  later  states  artificial,  130; 
choose  presidential  electors,  40,  44 ; 
vote  for  president,  45-47;  regulate 
suffrage,  120,  148,  319-322;  regulate 
citizenship,  322-328;  regulate  elec- 
tions, 338;  congressional  districting  in, 
149,  151;  administration  in,  377; 
legislature,  285,  340-360;  interpreted 
by  courts,  272,  273  ;  judiciary  of,  379- 
391;  criticized,  273,  277;  relation  to 
federal  judiciary,  257,  258,  260,  263 ; 
polirc  power,  329-333;  control  local 
government,  333-339 ;  interrelations, 
314-316,  321;  relation  to  federal 
government,  5-7,  307-31O1  316-318; 
decline  of  prestige,  310-314. 

Statesman's  Yearbook,  cited,  460. 

Statutory  law,  ia  Slate  courts,  387. 


INDEX 


751 


Stearns  v.  Minnesota,  cited,  310. 

Stein,    Ileinrich    Friedrich    Karl,    baron 

von,  reforms  in  Germany,  sgs- 
Stephen,  influence  of  church  in  reign  of, 

517- 
Strict  Construction.     See  Constitution : 

United  States. 
Strike  of  railway  employees,  57. 
Stuarts,  English  dynasty,  479,  552.     See 
also  James  I,  Charles  I,  Charles  II,  and 
James  II. 
Stubbs,   William,   Constitutional    History 

of  England,  412,  414,  420,  421,  424. 
Sturges  V.  Crowninshield,  cited,  8. 
Subcommittees,  in  legislative  work,  159. 
Subdelegates,  in  Chile,  66g. 
Subprefects,    in    French    administrative 

system,  568. 
Suffrage : 

In  England,  496. 
In  France,  554.  557,  568,  569. 
In  Germany,  616.    See  also  Prussia, 
below. 

In  Norway,  651. 

In  Prussia,  597,  599,  605,  612. 

In  Switzerland,  624,  627. 

In  United  States,  120,  148,  309,  319- 

328.  See  also  Woman's  suffrage. 
Superior  Courts,  in  States,  382. 
Supreme  Court  : 

In  Argentina,  679,  681-683. 

Of  Judicature  in  England,  530,  531. 

In  United  States,  established  by 
Constitution,  231,  233,  236,  250;  the 
ultimate  authority,  1 1 ;  interprets  the 
Constitution,  12,  23,  27,  116,  262,  263, 
266,  268,  296-298,  300-302 ;  nullifies 
legislation,  64,  68,  69,  245,  266-270, 
276,  278;  establishment,  231,  233,  236, 
241,  295;  changes  in,  238-240;  pro- 
cedure, 241-244;  original  jurisdiction, 
254-256,  260,  261 ;  judges,  55,  59,  61 ; 
rules,  273-275;  appeals  to,  iii,  248, 
262-264;  decisions  cited,  105,  258, 
288,  309,  310,  314,  317,  322,  323,  326, 

329,  330;  relation  to  Congress,  117, 
260,  261 ;  upholds  federal  power,  6,  10, 
300,  301;  criticism  of,  237,  244,  271- 
273,  276,  277,  279,  301, 302  :  respect  for, 
244.    Of  the  several  States,  381-385- 

Sweden,   a   minor   state,   649 ;    govern- 
ment, 651-653. 

Switzerland: 

\  minor  state,  649 ;  formerly  a  con- 
federation, 689 ;  a  federal  government. 


12;  Constitution,  54s,  614-619,  627; 
early  history,  614-619;  federal  insti- 
tutions, 621-631 ;  democracy,  614- 
616,  628-632,  639,  644;  parties,  491, 
635-638;  patriotism,  483,  484;  church 
,    policy,  496 ;  direct  legislation,  355,  619, 

626,  632,  643  ;  public  service,  486,  487. 
Switzerland  and  United  Stales: 

democracy  compared,  616-619,  629- 

645- 

judiciary  compared,  630,  631. 
legislatures  compared,  641-643. 
presidency  compared,  624,  639,  640. 
separation  of  powers  compared,  626, 

627,  629. 

See  also  England  and  Switzerland; 
France  and  Switzerland. 
Syndicalism,  in  France,  579. 

"Tacking,"  a  parliamentary  device,  463. 
Taft,    William    Howard,    cabinet,    124; 

vetoes,  76 ;  cited,  389. 
Tarifif,  for  protection,  299 ;  a  party  issue, 
469 ;  in  Congress,  10,  135  ;  of  1913,  73  ; 
interpreted  by  courts,  248,  265. 
Taxation  : 

In  Argentina,  678. 
In  Chile,  670. 
In  England,  426. 
In  France,  569. 
In  Germany,  605. 

In  United  States,  under  federal  con- 
trol, 7,  9,  317,  318;  controlled  by 
Congress,  116,  137;  must  be  uniform, 
117;  reform,  358;  collection  of,  337, 
338;  supervision  of,  374;  and  Su- 
preme Court,  288.  See  also  Finance 
and  Income  taxation. 
Tax  Commission,  centralizes  supervision, 

338. 
Taylor,  Zachary,  uses  no  vetoes,  76. 
Temple,  Rt.  Hon.  Sir  Richard,  Life  in 

Parliament,  458. 
Temple,  Sir  William,  English  statesman, 

399- 

Temporary  chairman,  of  National  Con- 
vention, 195,  211. 

Tennessee,  senator  from,  141 ;  on  judicial 
circuit,  244. 

Tenure  of  Office  Act,  62. 

Territories,  under  control  of  Congress, 
iiS,  258,  310. 

Texas,  on  judicial  circuit,  244 ;  United 
States  courts  in,  245 ;  legislative  sal- 
aries, 349 ;  local  rights,  696. 


752 


INDEX 


Teutonic  tribes,  invasions,  551 ;   conquer 
Roman   Empire,   592.     See  also   Ger- 
many and  Germans. 
Tiedeman,   C.   G.,    The   Unuritlen  Con- 
stitution of  the  United  Stales,  306. 
Tierra  del  Fuego,  in  Argentina,  676. 
Thiers,  Adolphe,  president  of  France,  556, 

562. 
Third  term  for  President,  51. 
Thirty-nine  Articles,  in  English  church, 

520. 
Thirty  Years'  War,  in  Germany,  594. 
Thomas,  David  Y.,  "Law  of  Impeach- 
ment in  the  United  States,"  141. 
Tilden,  Samuel,  defeat,  47. 
Tobacco,  tax  on,  loi. 
Todd,    Alpheas,    Parliamentary    Govern- 
ment in  England,  458 ;    Parliamentary 
Government  in  British  Colonies,  549. 
Toleration,  in  Switzerland,  614. 
Tory  party  in  England,   179,  428,  443, 
428,  506;    origin  of  term,  494;    com- 
position of,  419,  495,  496;  and  cabinet 
system,  431 ;  democrac-y  of,  473  ;  local 
government     policy,     420.     See     also 
Conservative  party. 
Tout,   Thomas   F.,   Political  History  of 

England,  539. 
Trade,  Board  of,  in  England,  435.     See 
also  Commerce  and  Interstate  com- 
merce. 
Trades  unionism  in  France,  579.    See  also 

Labor. 
Tradesmarks,  under  federal  jurisdiction, 

265. 
Transportation,   in   Australia,   685.     See 
also  Interstate    commerce  and   Rail- 
ways. 
Treasfjn,  punishment  for,  231. 
Treasurer,  lord   high,  in   I'^ngland,  43O; 
in  States  of  United  Stales,  371,  372, 
307- 
Trkasurv : 

In  England,  441,  499;    first  lord  of, 
436,  437.  443. 

In    United    Slates,    secretary,    48; 
department,  95,  97,  99-102. 
Thkatiks  : 

Franco-German  (1871),  556. 
Spanish-American  (1898),  124. 
Weslijhalia  (1648),  594. 
Trkaty-making: 

In  ArKcntina,  682. 
In  I'^ngland,  482. 
In  !■  ranee,  505. 


In  Germany,  607. 
In  Switzerland,  642. 
In  United  States,  34,  55,  64-68,  91, 
98;  confirmation  by  Senate,  34,  35, 
60,  64,  O7,  138-140;  custodianship, 
99 ;  obligations  of,  56,  69 ;  enforce- 
ment, 251,  252;  rights  arising  from, 
233  ;  naturalization  regulated  by,  325  ; 
interpreted  by  Supreme  Court,  262. 

Trevelyan,  G.  M.,  England  in  the  Time 
of  Wyclijfe,  522;  England  in  the  Age 
of  Walpolc,  515;  England  under  the 
Stuarts,  522. 

Tricolor,  in  France,  563. 

Trimmers,  English  party,  428. 

Trust  cases,  in  federal  courts,  265. 

Trusts.     See  Corporations. 

Tudor  dynasty,  in  England,  413,  479, 
484,  492. 

Turkish  empire,  dismembered,  649,  653 ; 
despotism  in,  653 ;  war  with  Russia, 
654- 

Turner,  H.  G.,  First  Decade  of  the  Aus- 
tralian Commonwealth,  547,  549. 

Tyler,  John,  vetoes,  76. 

Unanimous  verdict,  in  jury  trials,  389. 

Underwood-Simmons  tariff  bill,  135. 

Unicameral  legislature,  proposed,  354, 
355- 

Uniformity,  tendency  to,  in  State  legis- 
lation, 340-342,  358,  359. 

Union  of  South  Africa,  see  South  Africa. 

Unit  rule  in  German  Bundesralh,  602 ; 
in  Democratic  nominating  convention, 
193,  199- 

Unitkd  States: 

Colonial  period,  15,  16,  25,  26,  34, 
I7Q.  341.343,  690;  severed  from  Eng- 
land, 3,  431 ;  not  a  confederation,  11  ; 
federal  government,  3,  4,  2^!,,  24,  307- 
310;  independent  <lcveloi)menl,  560; 
influence  on  South  America,  O61,  6O3, 
008,  670;  patriotic  sentiment,  in,  489; 
Statutes  at  Large,  cited,  240.  See  also 
Australia  and  United  States,  Canada 
and  United  States,  England  ami 
United  States,  France  and  United 
States,  Switzerland  and  United  States, 
also  the  several  inslituticjns  of  govern- 
ment, i.e.  (■al)inel.  Constitution,  etc. 

United  States  v.   Wong  Kim  Ark,  cited, 

324- 
Unlerwalden,  Swiss  canton,  615. 
Uri,  Swiss  canton,  615. 


INDEX 


753 


Utah,  senator  from,  120;  restrictions 
imposed  on,  245 ;  on  judicial  circuit, 
245- 

Van  Dyne,  Frederick,  Citizenship  of  (he 
United  Slates,  328. 

Vaud,  Swiss  canton,  626. 

Vermont,  judges  in,  383-385  ;  legislative 
salaries,  SA9  I   on  judicial  circuit,  244. 

Versailles,  National  Assembly  at,  562 ; 
German  empire  proclaimed  at,  599. 

Veto  Power  : 

In  Argentina,  678. 
In  Canada,  542,  543,  692. 
In  England,  76. 
In  France,  557,  SS8. 
In  Germany,  609. 

In  United  States,  in  colonial  times, 
IS  ;  uses  of,  306 ;  eSects,  26,  29 ;  vested 
in  president,  55,  71,  73-77.  9°.  169, 
170;  in  governors  of  States,  370. 

Vice  president,  election  of,  39,  40 ;  office, 
52,  S3;   presides  in  Senate,  132. 

Victoria,  queen  of  England,  480,  481 ; 
made  empress  of  India,  484  ;  influence 
during  United  States  Civil  War,  4S2  ; 
Letters,  cited,  490. 

Vincent,  John  M.,  Government  in  Switzer- 
land, 620,  710. 

Virginia,  as  a  colony,  690 ;  state  consti- 
tutions, 344 ;  judges  in,  383 ;  on 
judicial  circuit,  244 ;  and  Constitu- 
tional Convention,  291. 

Virginia  v.  Tennessee,  cited,  316. 

Voltaire,  Franjois  M.  A.,  political  phi- 
losopher, 553. 

Wakeman,  Henry  0.,  History  of  Church 
of  England,  516,  522. 

Wales,  Prince  of,  533. 

Wales,  conciliated  by  Edward  I,  454 ; 
relation  to  England,  533,  539 ;  repre- 
sentation in  Parliament,  448-450 ; 
national  characteristics,  533 ;  church 
historj',  521,  522  ;  system  of  law,  582. 

W'alpole,  Robert,  English  statesman,  429, 
4.50.  4,53- 

Walpole,  Sir  Spencer,  England  since  181 5, 
434,  515- 

War,  must  be  declared  by  Congress,  64, 
65,117;  directed  by  president,  57; 
secretarj'  for,  in  England,  436;  in 
United  States,  48.     See  also  Wars. 

War  and  Marine  department  in  Chile, 
665. 

3C 


War  Department  : 
In  Argentina,  681. 
In  France,  567. 

In  United  States,  97,  102,  103. 
Ward  v.  Maryland,  cited,  327. 
Wars  : 

American  Revolution,  4. 
Civil,  in  United  States,  10,  11,  64, 
107,  311;    presidency  during,  31,  32; 
England's  relation  to,   482  ;   constitu- 
tional amendments  follow,   287,  319; 
expansion  since,  109. 
Franco-Prussian,  599. 
Mexican,  65. 

Roses  (of  the),  418,  423,  495. 
Spanish- American,  32. 
1812  (of),  422. 
1914  (of),  612,  613. 
Washington,    George,   in   Constitutional 
Convention,    282 ;     election,    38,    41 ; 
administration,    186;    addresses  Con- 
gress,  71,  306;    vetoes,   75,  76;    de- 
clines  third    term,    180;     retires,    42, 
51;   a  symbol  of  unity,  484;   Farewell 
Address,  178,  179,  181,  691. 
Washington  (D.  C),  capital,  40,  45,  112, 

113  ;  federal  courts  at,  248. 
W^ashington   (state),  on  judicial  circuit, 

245- 
Watson,    R.    Spence,    National    Liberal 

Federation,  515. 
Ways  and  Means  Committee,  of  House 
of  Commons,  452,  453,  476;   of  House 
of  Representatives,  157-159,  162,  174. 
Webster,  Daniel,  cited,  271. 
Weights  and  Measures,  standards,  117. 
Wensleydale  case,  460. 
Westminster,  Palace  of,  447. 
West  Point,  military  academy  at,  102. 
West  Saxon  dynasty,  in  English  history, 

404,  516. 
West  Virginia,  coimty  courts  in,  381 ;  on 

judicial  circuit,  244. 
Whig  Party  : 

In   England,   origin   of   term,    494; 
policy,   179,  419,  428,  439,  506,  552; 
composition  of,  495,  496. 
In  United  States,  185,  191. 
White,  Edward  D.,  justice  of  Supreme 

Court,  61. 
White  House,  expenses  of,  52. 
White  slaver>',  act  to  control,  300. 
Whitney  v.  Robertson,  cited,  69. 
Wilkes,  John,  mob  leader,  495. 
William    I,  king   of   England,  415,  517. 


754 


INDEX 


523 ;  separates  church  from  secular 
courts,  516,  517. 

William  II.  king  of  England,  414,  415. 

William  III,  accession  to  throne,  428, 
433.  510.  5^2,  536. 

William  IV,  king  of  England,  470 ; 
creates  peers,  500. 

William  I  of  Germany,  as  regent,  598; 
king  of  Prussia,  598;  Emperor  of 
Germany,  599,  606. 

William  II  of  Germany,  idea  of  divine 
right,  607 ;  telegram  to  Kruger,  482. 

Willoughby,  W.  W.,  Constitutional  Law 
in  United  States,  254,  258-260,  271- 
273,  280,  310,  311,  316;  Supreme 
Court,  280;  The  American  Constitu- 
tional System,  310,  311,  316. 

Wilson,  Woodrow,  president  of  United 
States,  13,  194;  calls  special  session 
of  Congress,  135 ;  addresses  Congress, 
73,  306;  cited,  23,  32,  129,  130,  143, 
159;  Constitutional  Government  in  (he 
United  States,  7,  10,  13,  32,  54,  79,  130, 
149,  156,  159,  160,  166,  167,  176,  189, 
27s,  276,  280,  303;  The  State,  402, 
571.  S9I,  601,  613,  620. 

Winchester,  Bishop  of,  sits  in  House  of 
Lords,  460. 

Winchester,  Boyd,  The  Swiss  Republic, 
620. 

Wisconsin,  on  judicial  circuit,  244;  new 
legislature  in,  221,  203,  342;   commis- 


sions, 375  ;  legislative  reference  library, 

353;  senator,  291. 
Wisconsin  v.  Pelican  Insurance  Company, 

cited,  315. 
Witan,  in  relation  to  Curia  Regis,  421. 
Woman,  status  of  alien,  323. 
Woman's  suSrage  in  England,  470,  482 ; 

in  New  Zealand,  545  ;  in  Norway,  651 ; 

in  United  States,  320. 
Woodbum,   James  A.,   Political  Patries 

and    Party    Problems    in    the    United 

States,   189,   193,   197,   203,   213,   218, 

230;    The  American  Republic,  13,  30, 

54,  75,  80,  144,  176,  181. 
Workingmen's  Compensation  laws,  358, 

374- 
W'orship  and   Colonization,   department 

in  Chile,  665. 
Writs  of  Error,  in  Supreme  Court,  243. 
Wyclif,  John,  religious  revival  of,  518; 

political  value  of,  493. 
W'yoming,  on  judicial  circuit,  245. 
Wiirtemburg,  and  the  German  empire, 

602,  605. 

York,  Archbishop  of,  460,  519;    synod, 

519. 
Young,  James  T.,   The  New  American 

Government  and  its  Work,  80,  115,  144, 

176,  280,  339,  379. 

Zurich,  Socialists  in,  637. 


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Property  and  Contract  in  Their  Relation  to  the 
Distribution  of  Wealth 

By   RICHARD  T.    ELY,    Ph.D.,   LL.D. 

Of  the  University  of  Wisconsin  ;  Author  of  "  Outlines  of  Economics," 
Editor  of  "The  Citizen's  Library,"  etc. 

Cloth,  8°,  2  vols.,  $4.00. 
A  special  law  libra?-}'  edition,  sheep,  $7.jo 

In  this  work,  which  is  based  upon  legal  decisions  as  well  as  upon  economic 
principles,  a  leading  authority  in  political  economy  considers  simply  and  concisely 
one  of  the  greatest  problems  now  before  the  American  people.  Much  has  been 
heard  and  written  of  late  about  judicial  readjustment  and  direct  government,  but 
few  who  have  discussed  the  subject  have  seen  the  heart  of  it  as  clearly  as  does 
Professor  Ely. 

"  We  are  indebted  to  Professor  Ely  for  an  excellent  book.  His  style  is  clear  and 
perspicuous,  and  his  vocabulary  for  the  most  part  untechnical.  Economists  ought 
to  be  able  to  understand  his  statement  of  the  law,  and  lawyers  his  statement  of 
economic  theory.  A  study  of  the  book  ought  to  help  bring  together  two  classes 
who  often  have  the  same  problems  to  deal  with  under  different  aspects,  and  often 
fail  to  understand  each  other.  It  would  be  an  error,  however,  to  give  the  impres- 
sion that  the  book  is  essentially  either  a  law  book  or  a  text  book.  It  really  deals 
in  a  philosophical  way  with  the  concepts  of  property  and  contract  in  their  relation 
to  the  distribution  of  wealth. 

The  book  ought  to  have  many  readers,  and  all  would  find  it  suggestive  and  help- 
ful." —  Justice  Francis  J.  Swayze,  in  the  Quarterly  Join  nal  of  Economics. 

"  Our  economists,  like  our  legal  writers,  have  for  the  most  part  merely  carried 
forward  the  English  tradition  with  its  powerful  leaning  towards  extreme  individual- 
ism. Professor  Ely  of  the  University  of  Wisconsin  was  one  of  the  first  among 
American  writers  upon  economic  subjects  to  draw  his  inspiration  from  continental 
sources.  His  early  work  in  this  field  set  forth  ideas  drawn  from  the  teachings  of 
distinguished  modern  German  thinkers  and  writers,  and  in  the  present  work  he 
has  fitted  the  facts  of  American  economic  life  into  the  theories  and  conclusions  of 
these  masters." —  California  Law  Review. 

"  I  want  to  express  my  great  pleasure  and  profit  in  reading  '  Property  and  Con- 
tract." This  seems  to  me  the  strongest  of  all  the  author's  many  able  contributions 
to  economic  thought.  It  should  be  read  by  all  judges,  for  this  book  has  marked 
the  highroad  along  which  courts  must  travel  if  they  are  to  make  the  law  a  living 
science  that  shall  meet  the  needs  of  our  ever-changing  civilization." 

— Judge  E.  Ray  Stevens,  Circuit  Court,  Madison,   Wis. 

"  The  book  is  one  that  should  be  in  the  hands  of  every  lawyer  and  I  really  feel 
that  the  author  has  done  the  public  a  service.  What  we  need  these  days  is  sanity, 
and  sanity  is  to  be  found  within  the  covers  of  this  work." 

— Justice  Andrew  A.  Bruce,  Supreme  Court,  N.  D. 

"  I  do  not  question  that  the  book  will  have  a  wide  influence  especially  on  the  young 
people  who  are  breaking  away  from  traditional  property  concepts,  but  are  not  mes- 
merized by  Utopian  nonsense."  —  Professor  Samuel  F,  Orth,  Cornell  University. 


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SOCIAL  SCIENCE  TEXT-BOOKS 
Edited  by  Richard  T.    Ely 

The  New  American  Government  and  Its  Work 

By  JAMES  T.  YOUNG 

Professor  of  Public  Administration  in  the  University  of  Pennsylvania 

Cloth,  SVO,  $2.2J 

This  book,  intended  for  that  growing  circle  of  readers 
who  are  interested  not  only  in  political  form  and  struc- 
ture, but  also  more  especially  in  What  the  Government  Is 
Doing  and  Why,  is  characterized  by  the  following  features : 

1.  It  places  greater  emphasis  than  usual  on  the  work  of 
the  government. 

2.  It  pays  more  attention  to  present  problems,  espe- 
cially to  the  Public  Regulation  of  Business. 

3.  It  applies  to  ever>^  aspect  of  government  the  test  of 
Results  —  whether  the  subject  be  the  powers  of  the  Presi- 
dent, the  election  laws,  or  the  Sherman  act  —  for  the  value 
of  a  court,  a  statute,  or  a  political  institution  should  be 
known  by  its  output. 

4.  It  depicts  the  Government  As  It  Is,  and  as  it  has 
develoi:)cd.  Our  system  is  not  a  linished  crystal,  nor  an 
ancient  historical  manuscript,  but  a  growth.  And  it  is 
still  growing. 

5.  It  includes  the  interpretation  of  the  Constitution  and 
the  chief  regulative  laws,  in  the  most  recent  Decisions  of 
Ifte  Supreme  Court.  It  is  this  that  gives  clear,  definite 
meaning  to  the  discussion  of  government  forms  and  ac- 
tivities. 

6.  It  presents  an  Ideal.  It  does  not  hesitate  to  point 
out  the  moral  defects,  and  the  social  cost  of  jiolitical  weak- 
ness and  inefficiency,  but  its  Tone  is  Optimistic. 


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SOCIAL  SCIENCE  TEXT-BOOKS 

Editkd  by  Richard  T.  Illy 

Outlines  of  Sociology 
By   frank   W.    BLACKMAR 

Professor  of  Sociology  in  the  University  of  Kansas 

AND 

JOHN  L.   GILLIN 

Associate  Professor  of  Sociology  in  the  University  of  Wisconsin 

8vo,  $2.00 

This  book  treats  the  theory  and  practice  of  social  science  in  a  series 
of  chapters  dealing  with  social  pathology  and  methods  of  social  investi- 
gation. The  authors  have  presented  the  origin,  nature,  structure,  func- 
tions, and  abnormal  phenomena  of  society,  without  controversy,  and  in 
a  simple  direct  way,  suited  to  the  college  undergraduate  or  the  general 
reader. 

Problems  of  Child  Welfare 
By   GEORGE    B.   MANGOLD,    Ph.D. 

Director  of  the  School  of  Social  Economy  of  Washington  University 

Clotk,  Svo,  $2.00 

Although  this  book  is  designed  especially  for  use  as  a  text  in  college 
courses  on  philanthropy,  it  will  also  appeal  to  that  growing  class  of  men 
and  women  who  in  a  systematic  way  are  endeavoring  to  acquaint  them- 
selves with  the  various  aspects  of  practical  sociology. 

Much  of  the  constructive  philanthropy  of  to-day  must  deal  directly 
with  the  child,  the  improveinent  of  his  conditions  being  the  direct  ob- 
jective. Those  problems  which  affect  children  in  an  indirect  way, 
whether  in  the  field  of  remedial  or  preventive  philanthropy,  are  not 
treated.  Under  each  separate  problem  are  discussed  the  causes  and 
conditions,  the  macliinery  of  social  betterment,  and  the  plans  and  pro- 
gram of  improvement. 


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SOCIAL   SCIENCE   TEXT-BOOKS 

Edited  by  Richard  T.  Ely 

History  of  Economic  Thought 

A  Critical  Account  of  the  Origin  and  Devel- 
opment of  the  Economic  Theories  of  the 
Leading  Thinkers  and  the  Leading  Nations 

By   lewis   H.    HANEY 

Cloth,  8vo,  $2.00 

"  Dr.  Haney's  work  is  both  complete  and  exhaustive  without  being  discursive. 
We  shall  look  far  before  finding  anything  of  its  kind  so  satisfying." 

—  T/ti  Argonaut. 

"  The  book  should  be  of  value  to  English  readers  and  students  of  economics,  for 
unlike  French  and  German  economic  writers,  who  have  produced  several  histories 
of  economic  thought,  only  one  has  been  written  previously  in  English,  and  that  is 
now  out  of  date.  Dr.  Haney  has  made  a  distinct  contribution  to  economic  litera- 
ture and  one  reflecting  credit  on  American  scholarship." —  JAe  Boston  Transcript. 

Business  Organization  and  Combination 

An  Analysis  of  the  Evolution  and  Makers  of  Business 
Organization  in  the  United  States,  and  a  Tenta- 
tive Solution  of  the  Corporation  and  Trust  Problems 

By  lewis   H.   haney,   Ph.D. 

Professor  of  Economics  in  the  University  of  Texas 

Cloth,  8vo,  48J  pages,  $2.00 

EX'rR.\CTS    FROM     THE    PREFACE 

This  book  deals  with  the  organization  of  business  enterprises,  chiefly  in  the 
United  States. 

The  genera!  scheme  of  the  work  is  as  follows :  First  comes  a  series  of  chapters 
describing  .ind  analyzing  the  various  forms  of  business  organization  in  such  a  way 
as  to  l)ring  out  the  centuries-long  evolution  which  has  molded  them.  Then,  the 
corporate  form,  being  clearly  dominant,  the  life  liistory  of  a  corporation  is  set  forth 
in  a  series  of  chapters  which  describe  in  some  detail  the  main  event;  promotion, 
underwriting,  n^organization,  and  the  like.  Finally,  great  evils  having  appeared  in 
corporate  organization,  the  question  of  public  policy  is  raised,  and  an  attempt  at  a 
comprehensive  and  scientific  solution  of  that  question  is  made. 


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CITIZEN'S  LIBRARY  OF  ECONOMICS,  POLITICS, 
AND  SOCIOLOGY 

Edited  by  R.  T.  Ely 

Each  volume,  i2mo,  half  leather^  $-i-2j 

American  City,  The.     A  Problem  in  Democracy.     By  D.  F.  Wilcox. 

Child  Problems.      By  George  B.  Mangold. 

Colonial  Administration.      By  Paul  S.  Reinsch, 

Colonial  Government.      By  P.  S.  Reinsch. 

Commission  Government  in  American  Cities.     By  Ernest  S.  Bradford. 

Democracy  and  .Social  Ethics.     By  Jane  Addams. 

Education  and  Industrial  Evolution.      By  P'rank  Tracy  Carlton. 

Elements  of  Sociology.     By  F.  W.  Blackmar. 

Essays  in  the  Monetary  History  of  the  United  States.     By  C.  J.  Bullock. 

Foundations  of  Sociology.     By  E.  A.  Ross. 

Government  in  Switzerland.      By  John  M.  Vincent. 

Great  Cities  in  America  :  Their  Problems  and  Their  Government.     By  Delos 

F.  Wilcox. 
History  of  Political  Parties  in  the  United  States,     By  J.  Macy. 
International  Commercial  Policies.     By  G.  M.  Fisk. 
Introduction  to  Business  Organization.     By  S.  E.  Sparling. 
Introduction  to  the  .Study  of  Agricultural  Economics.      By  H.  C.  Taylor. 
Irrigation  Institutions:   A  Discussion  of  the  Growth  of  Irrigated  Agriculture 

in  the  Arid  West.     By  E.  Mead. 
Money :   A  Study  of  the  Theory  of  the  Medium  of  Exchange.     By  David 

Kinley. 
Monopolies  and  Trusts.     By  R.  T.  Ely. 
Municipal  Engineering  and  .Sanitation.     By  M.  N.  Baker. 
Newer  Ideals  of  Peace.      By  Jane  Addams. 
Principles  of  Anthropology  and  .Sociology,  The,  in  their  Relations  to  Criminal 

Procedure.     By  M.  Parmelee. 
Railway  Legislation  in  the  United  States.     By  B.  H.  Meyer. 
Social  Control :  A  Survey  of  the  Foundation  of  Order.     By  E.  A.  Ross. 
Some  Ethical  Gains  Through  Legislation.     By  Mrs.  Florence  Kelley. 
Spirit  of  American  Government,  The.      By  J.  A.  Smith. 
Studies  in  the  Evolution  of  Industrial  Society.     By  R.  T.  Ely. 
Wage- Earning  Women.     By  Annie  M.  MacLean. 
World  Politics.     By  P.  S.  Reinsch. 

CITIZEN'S  LIBRARY  OF  ECONOMICS,  POLITICS, 
AND  SOCIOLOGY 

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EUwood,  Charles.     The  Social  Problem.  i2mc,  $/.2j 

DeWitt.  Benjamin  P.     The  Progressive  Movement.  /2»io,  $i.^o 
King,  Willford  I.     Wealth  and  Income  of  the  People  of  the 

United  .States.  127)10,  S/.JO 

Zueblin,  C.     American  Municipal  Progress.     New  Edition.  Preparing 


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